Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers

Untold

Program on Information Justice and Intellectual Property Stories in South Africa: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers

Sean Flynn and Peter Jaszi

A project of: Black Filmmakers Network & Documentary Filmmakers’ Association, South Africa Program on Information Justice and Intellectual Property & Center for Social Media, American University

EO/AAUniversityandEmployer Funded by the Ford Foundation

American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, DC 20016-8181 www.wcl.american.edu/pijip/ PROJECT PARTICIPANTS

Principal Investigators: Sean Flynn and Peter Jaszi Program on Information Justice and Intellectual Property, American University Washington College of Law

Interview Coordinators: Ben Cashdan, Marc Schwinges, Sipho Singiswa, Natalie Stange

Interviewers: Ben Cashdan, Sipho Singiswa, Marc Schwinges, Natalie Stange, Tula Diamini, Meril Rasmussen, Pascal Schmitz, Miki Redelinghuys

Project Advisor: Patricia Aufderheide

Legal Advisors (SA): Andrew Rens, Tobias Schonwetter

Video Production: Tim Wege & Miki Redelinghuys

Research & Editing: Matilda Bilstein, Jessica Cameron, Colleen O’Boyle, Hauwa Otori, Mike Palmedo, Ali Sternburg, Marynelle Wilson

Filmmaker Interviews: Johann Abrahams, Gail Berman, Bronwyn Berry, Lucilla Blankenburg, Neil Brandt, Dorothy Brislin, Seipati Bulane-Hopa, Ben Cashdan, Indra Delanerolle, Rehad Desai, Tula Dlamini, Wynand Dreyer, Don Edkins, Sharon Farr, David Forbes, Harriet Gavshon, Odette Geldenhuys, Dan Jawitz, Michael Lee, Alethea Lindsay, Jane Lipman, Steven Markovitz, Tendeka Matatu, Vincent Moloi, Sechaba Morejele, Mthuthuzeli, Nicki Newman, Mandla Ngcongwane, Roli Nikiwe, Dingi Ntuli, Magantrie Pillay, Miki Redelinghuys, Pascal Schmitz, Marc Schwinges, Khalid Shamis, Sipho Singiswa, Guy Spiller, Helena Spring, Natalie Stange, Robbie Thorpe, Francois Verster

Funder: Ford Foundation

www.wcl.american.edu/pijip/go/internationalfilm Contents

Executive Summary 1

Research Design 1 Findings 1 Recommendations 2

Study Concept 3

Research Design 5

Background Research and Analysis of South African Law 5 Partnerships with South African Filmmaker Organizations 6 Survey of Filmmaker Practices and Perceptions 6 Filmmaker Workshop & Consultation Meeting 8

Legal Review 10

Limitations and Exceptions that Permit Use of Copyrighted Materials Without License 10 Limitations and Exceptions from Other Laws 14

Survey of Perceptions and Practices of Filmmakers 16

Clearance Culture 16 Role of Gatekeepers 18 www.wcl.american.edu/pijip/go/internationalfilm Creative Consequences of the Rights Clearance Culture

Copyright and Clearance 19 Costs and Complications of Clearance 21 Executive Summary Red Tape and Viewpoint Discrimination 22 This report summarizes research on the perceptions of South African Restrictions on Film Content and Distribution 22 documentary filmmakers about copyright clearance requirements Users’ Rights in the Dark 23 and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons Shared Views on a Fairer System 25 learned from “best practices” projects with documentary filmmakers Need for Alternative Archival Access 26 in the U.S. can help their counterparts in other countries identify and overcome barriers to effective filmmaking posed by escalating copyright clearance requirements. Recommendations 27 Copies of this report and other materials created for this project are available at http://www.wcl.american.edu/pijip/go/internationalfilm. Short Term Goals 27 Longer Term Goals 29 Research Design Appendix: The project conducted a legal review of South African and other commonwealth laws. This review included commissioned Excerpts From Responses scholarly reports on copyright law and documentary filmmaking To Questions 30 in commonwealth countries from the developed and developing world. Using this research as background and context, the principal investigators undertook a detailed examination of the users’ rights Information About Respondents 30 available to filmmakers in the South African Copyright Act. Copyright Experience 30 The project also included research into South African Use of Archives 46 documentary filmmaker perceptions and practices with regard Asserting Your Own Copyright 49 to use of copyrighted material in their films. This work included a survey of 41 South African filmmakers conducted by members of Copyright Knowledge 56 the Documentary Filmmakers’ Association (“DFA”) and the Black Filmmakers’ Network (“BFN”).

Following these two research exercises, a two-day workshop was held with filmmakers at which the research findings were presented and discussed. The workshop included segments training filmmakers on their users’ rights under existing law as well as opportunities to change the law through an ongoing reform process.

Findings

South Africa’s copyright law contains important limitations and exceptions that permit for the fair quotation of copyrighted work without license from the right holder, but these aspects of South Africa’s law are not well known among filmmakers.

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Gatekeepers, such as broadcasters, researchers and international ²² Develop a list of pressing copyright policy distributors, often enforce rigid rights clearance requirements proposals for pending revision of the South which are producing a “clearance culture” in which filmmakers African copyright law. believe that they must obtain clearance for every use of copyrighted material in their films. In the longer term, over the next two to four years as the South African copyright law is being revised, the organizations resolved to: The clearance process is complex, time-consuming, expensive and frequently frustrating. These hardships lead to many instances ²² Articulate additional law reform goals, such as when filmmakers alter their work to avoid the use of copyrighted positions on copyright term extension. material or limit the circulation of their films to avoid clearance requirements. ²² Research law reform strategies, including research into constitutional free-expression When South African filmmakers exercise their rights to use grounds for user rights in copyright. copyrighted material without license, they most frequently do so quietly, reluctantly and under an assumption that their actions ²² Recommend ways in which documentary are illegal. filmmakers can create or contribute to projects in South Africa to audit archival and documentary Despite the low level of copyright literacy, filmmakers share footage (publicly and privately held), and to many common conceptions about what are fair and just uses create “open” archives through which material of copyrighted material in their films. Thus, collective action to would be more widely available to filmmakers improve their position under current law is a real possibility. and others.

In addition, South Africa’s copyright law is undergoing a process ²² Develop model transfer agreements for footage of revision. There are important limitations and flexibilities in other from filmmakers’ personal archives to open countries’ laws that South Africa does not utilize. Filmmakers in archive projects. South Africa have an opportunity to study the best models of copyright limitations and exceptions from other countries and ²² Investigate the utility of international best advocate for improving the legal enabling environment for practices statements that attempt to harmonize documentary film in South Africa. users’ rights across borders. Recommendations study concept Following the two-day workshop, DFA and BFN resolved to work with American University Washington College of Law and the Copyright laws and free expression principles are at once Center for Social Media to: interdependent and in potential conflict. Copyright laws help promote free expression by providing incentives for the production ²² Develop a consensus “best practices” of new creative works through an exclusive right of reproduction. But document explicating copyright users’ rights in taken to the extreme, exclusive rights could inhibit the production documentary filmmaking. of new expressive works that depend on the incorporation and transformation of prior expression. Thus, copyright laws normally ²² Develop standards for the ethical use of historical contain what the U.S. Supreme Court has referred to as “built-in documents and footage; art, music and stories [free expression] accommodations” in the form of limitations and that are traditional to indigenous groups; and exceptions to the original creator’s exclusive rights.1 These limitations the personal narratives of individuals. and exceptions, which allow quotation of copyrighted material without permission of the copyright owner in certain circumstances, ²² Develop a legal advice network for documentary may be broadly referred to as “users’ rights.” filmmakers on user rights in copyright. 1 Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (referring to the fair use doctrine’s “built-in First Amendment accommodations”).

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It is not enough that users’ rights exist on the books. To accomplish the U.S. Best Practices project could be of use to filmmakers in the balance between copyright owners and users that free the Commonwealth of Nations, composed primarily of the United expression requires, users of copyrighted material must know Kingdom and its former colonies. Broadly speaking, the national about their rights and have the practical means to take advantage copyright laws of the world can be divided into two groups: of them. In recent years, however, there has been a global those influenced primarily by continental European legal thought trend toward rigorous enforcement of copyright’s exclusivity by and those that reflect the model of British legislation. Although owners that often neglect users’ rights, and thereby harm free copyright doctrine in the U.S. has diverged significantly from expression principles. The Fair Use and Public Media Project that of the United Kingdom and the other countries that make of American University’s Program on Information Justice and up the Commonwealth, U.S. law does have many structural and Intellectual Property (PIJIP) and Center for Social Media (CSM) philosophical connections with the laws of other Commonwealth seeks to restore balance to copyright systems by working with states. It was therefore hoped that lessons from the U.S. experience documentary filmmakers and other media makers to understand, might be relevant in this new context. utilize and advocate for the protection and expansion of users’ rights in copyright law. South Africa was selected as the first site of study for this project because the country has a fairly typical Commonwealth In 2004, PIJIP and CSM published their first Untold Stories copyright law heavily influenced by British legal tradition, is a report. That report examined the experiences of documentary thought leader among emerging nations, and is home to a large filmmakers in the U.S. with copyright clearance demands and the and active community of documentary filmmakers. The country effect of those demands on the production of this important form is also embarking on a project to study and reform its copyright of public media. The report summarized filmmakers’ perceptions law, thus providing opportunities for filmmakers to investigate that rigid rights clearance demands were increasing, especially opportunities to change, as well as use, the existing law. by “gatekeepers” such as distributors, broadcasters and insurers, and that such demands were restricting the utility of “fair use” rights that protect free expression. Following the report, filmmakers worked with PIJIP and CSM to craft educational and Research Design policy tools to promote understanding and utilization of fair use rights, including a widely circulated and influential Documentary Filmmakers’ Statement of Best Practices in Fair Use. Background Research and Analysis

One of the aims of the Statement was to affect the way users’ of South African Law rights were interpreted on the ground and in the courts by establishing broadly shared standards for what unlicensed uses At the initiation of the project-planning period, expert reports of copyrighted material are considered “fair” in the industry. were commissioned from leading academics who were asked Because courts in the U.S. look to industry practice to determine to summarize the current state and potential future development the fairness and legality of a given use of copyrighted material, of users’ rights in their countries, especially in documentary films. the Statement served as a way to affect the law through a focus The reports were submitted by Emily Hudson (Australia), Jeremy on practice. de Beer (Canada), Lawrence Liang (India), Ayodele Kusamotu (Nigeria), Tobias Schonwetter (South Africa) and Jeroline Akubu The Statement and other efforts by filmmakers to articulate and (Uganda). Each of the reports is available at http://wcl.american. promote their rights as users proved extremely effective. The edu/pijip/go/internationalfilm. efforts led to changes by major distributors and broadcasters to permit films with fair use material to be shown to millions and to all Using the information gathered on comparative copyright laws four of the national errors and omissions insurers to begin issuing from the expert reports, combined with their own knowledge of fair use coverage on a routine basis. Films were made in reliance the topic, the principle investigators analyzed the South African on the Statement that would not have been possible to imagine Copyright Act to determine what appear to be the most helpful producing before the document was released. users’ rights for documentary filmmakers. The results of that analysis are summarized in the section on the “Legal Review,” below. This report arises out of an effort of PIJIP’s Fair Use and Public Media Project to explore the extent to which lessons and strategies from

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Partnerships with South African perceptions and practices with regard to the use of copyrighted material in their films. The survey was designed to elicit both Filmmaker Organizations qualitative and quantitative information, with each survey competed in an interview context in which follow-up questions 4 Using contacts developed through its work on other projects in could be asked. South Africa and with filmmakers around the world, PIJIP identified two filmmaker organizations that predominantly represent In a test run with a small group of interviewees, several were documentary filmmakers – the Documentary Filmmakers’ highly reluctant to share their experiences using unlicensed Association (“DFA”) and the Black Filmmakers’ Network (“BFN”). content in films for fear that they could be sanctioned for DFA was established “to create a unified voice for documentary such conduct by content owners or the SABC. Accordingly, filmmakers” and “address the specific needs of documentary interviewees were told that they could maintain the filmmakers and network with related industry bodies.”2 BFN was confidentiality of their responses and for this publication all formed to represent the particular interests of black filmmakers identifying information for specific responses to questions has in South Africa. The majority of BFN’s members are documentary been removed. filmmakers. All interviews were conducted by South African filmmakers who Both DFA and BFN have been active in recent policy debates were members of the DFA or BFN. In total, over 40 filmmakers from regarding the ownership interests of filmmakers in films Cape Town and Johannesburg (South Africa’s two centers of commissioned by the nation’s public broadcaster. Currently, documentary production) were interviewed between October the South African Broadcasting Corporation (“SABC”) claims all 2008 and February 2009. ownership in all materials (including footage not used) created in furtherance of a film commissioned for broadcast. The South All of the interviewees are full-time filmmakers who earn their African Copyright Act gives broadcasters this right as a default, livelihood in the industry, primarily from the production of and filmmakers have been advocating for, among other positions, documentary films. These filmmakers have a wealth of experience a change in the default rule of law.3 in the industry and, on average, more than ten documentaries to their credit. The budgets for these films vary from less than R At the initiation of this project, DFA and BFN leadership knew of 100,000 to more than R 1 million, with almost as many films being each other’s advocacy work, particularly on the issue of creator made on budgets of R 0-300,000 as films made with budgets of R rights in films commissioned by SABC, but had not worked closely 1 million or more. together. To ensure that PIJIP’s project would reach the broadest possible spectrum of filmmakers, PIJIP sought to establish The respondents reflected the diversity of South Africa’s relationships with both organizations and engage them in a population. They included black and white respondents collaborative project. from the full range of language groupings in South Africa (English, Afrikaans, Indian and Nguni and Sotho based African languages). About half the respondents were women. Some Survey of Filmmaker Practices and Perceptions had also been engaged in various degrees of opposition to apartheid, and some had working lives that began under the PIJIP worked with a South African documentary filmmaker democratic constitutional dispensation. consultant, Ben Cashdan, to design a survey of filmmaker The subject matter of their films is no less varied, including 2 http://www.docfilmsa.com/about.html. films on architecture, gay rights, politics in Zimbabwe, the 3 Other filmmaking organizations in South Africa represent different or broader environment, modernization and development, HIV/AIDS, the segments of the community and are also engaged in the ownership debate. At the time of this project, for example, DFA (but not BFN) was a member of the South African Screen Federation, an umbrella organization across the TV/film/fic- 4 The survey instrument is available at www.vukani.net/survey/copyright_survey. tion/documentary industries with a mission of “representing the interest of most php, and was based on similar questionnaires used for interviews of filmmakers film and television industry organisations as a collective federation.” The Inde- in Canada and the U.S. See Kirwan Cox, Censorship by Copyright: Report of pendent Producers’ Organisation of South Africa (IPO) represents the interests of the DOC Copyright Survey (November 15, 2005); Patricia Aufderheide and Pe- all independent producers, including documentary filmmakers as well as fiction ter Jaszi, Untold Stories: Creative Consequences of the Rights Clearance Culture producers. But most of IPO’s members are in fiction rather than documentary for Documentary Filmmakers (Nov. 2004), available at http://www.centerforso- production. cialmedia.org/rock/index.htm.

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South African judiciary and personal memoirs. These films have for their work. The participants discussed the survey results and been distributed nationally and internationally and include presented the draft findings and recommendations for discussion prestigious award winners.5 and input. There was also a panel with presentations consisting of projects that are seeking to create open archives of audio and visual material in South Africa. This panel on Future Visions for Filmmaker Workshop & Consultation Meeting Historical Archives was attended by representatives of the Visual History Archive at the University of Cape Town, South Africa History After all the surveys were completed and the results initially Archives (SAHA) and iHeritage. analyzed, the partner organizations sponsored a two-day workshop and consultation with the interviewees and other One key issue raised during the open archives discussion was 6 filmmakers. Over 40 documentary filmmakers, about half of how the intellectual property rights in materials donated to whom had taken the survey in the first phase of the project, open archive projects should be managed. Specifically, the attended the meeting March 18-19, 2009, in Cape Town. The group discussed whether material could be made available to purposes of the meeting included presenting the survey results archive projects using Creative Commons “Share Alike” or other for discussion, providing a chance for filmmakers to learn about licensing terms that would ensure downstream access to the South African and foreign copyright laws, and soliciting their input material by others. on the project’s draft findings and recommendations. Another issue that arose at the workship was the proprietary The first day of the meeting was primarily devoted to educating relationship of individuals in their personal stories (and records filmmakers about current users’ rights under South African and relating to them), and of communities in their traditional stories foreign copyright laws. Presentations included sections on and other cultural productions. Participants discussed whether Constitutional Free Expression Rights and Copyright, Copyright members of a community should have greater rights to access Limits and Exceptions for Documentary Film, Comparative and use footage documenting the history of that community; Perspectives on Copyright Users’ Rights, and Mobilizations to whether the history of the anti-apartheid struggle should be Change South African Copyright Law. more accessible to black filmmakers or to individuals who were participants in the struggle; what ethical obligations filmmakers Participants learned about a five-year study process of the (and others) have to attribute traditional cultural expressions; copyright act recently announced by the government. Against and how such concerns relate to the narrower legal question of the background of comparative analysis of flexibilities in the whether a given use of copyrighted material is “fair.” As discussed copyright laws of other countries, the discussion highlighted that below, the partner organizations agreed to include research of documentary filmmakers are key stakeholders in the copyright these questions in later stages of the project.7 reform process. As noted in the legal analysis below, there are many ways in which the current users’ rights in the law would At the end of the meeting, the group deliberated over a set benefit from adoption of norms that exist in other countries. But of recommendations that were later adopted by the partner the participation of filmmakers may need to be defensive as well organizations and are reflected in the recommendations section as offensive. There are parts of South African law that are far more of this report. liberal than international norms, an aspect that filmmakers may want to maintain.

The second day of the meeting was devoted to deliberations about how filmmakers can potentially take action to expand the utility of existing and potential future copyright flexibilities 7 One key copyright issue of concern to filmmakers was not selected for incor- 5 Notably, however, a number of filmmakers indicated that problems of copyright poration into this project. As noted above, filmmakers have been organizing clearance were a substantial obstacle to achieving broader foreign distribution for several years for reform of a section of the current copyright law that gives for their work. the default ownership of all copyrights in a commissioned production to the 6 Prior to the workshop, PIJIP hosted a leadership and planning retreat with repre- commissioning broadcaster. South African filmmakers are passionate about this sentatives from BFN and DFA. This retreat was the first opportunity for all three issue and there were many requests to include it within the research scope of organizations to work together face to face and provided an important oppor- this project. In the final analysis, however, it was decided that incorporation of tunity to plan the workshop together and build trust and a working relationship this issue would detract from this project’s focus on users’ rights. between the organizations.

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or visual work provided the quotation is “compatible with fair Legal Review practice,” the amount of material quoted does not “exceed the extent justified by the purpose” of the quotation, and the source There is a key difference between the situation in other countries of the quotation is mentioned.9 and that in the U.S., which long has been nearly alone in having a “fair use” doctrine in its national copyright law. Other national Potentially, much of what filmmakers commonly use copyrighted copyright laws provide for other kinds of users’ rights with material for could fall within this exception. Importantly, and regard to copyrighted material, but these rights are often seen in distinction from the fair dealing exception (discussed below) as more limited in scope and less flexible in application than or in the quotation exceptions of some other laws, there is no the U.S. standard.8 restriction relating to the purpose for which the quotation is made.10 Quotation is permitted for any purpose so long as the South Africa’s law follows the general Commonwealth model quotation itself meets the various elements of fairness. of providing for a series of specific limitations and exceptions to the general right of a copyright holder to exclude uses by One key feature of the provision is the duty to conform the others, supplemented by so-called “fair dealing” provisions. In quotation to “fair practice.” “Fair practice” is not defined in important respects, users’ rights in South Africa’s law are broader the Act, nor is there judicial authority interpreting the fairness in some respects than those provided for in some comparable concept in the South African copyright context.11 One way to national laws. In other ways, South Africa’s law appears to lack approach the issue, which would conform to practice under key flexibilities found elsewhere. the fair use clause in the U.S., would be to assess fairness in reference to the accepted standards of practice in the relevant use community, e.g., among documentary filmmakers. Thus, a Limitations and Exceptions that Permit Use best practices statement by filmmakers could help shape the application of the clause.12 of Copyrighted Materials Without License

Fair Quotation 9 There do not appear to be any particular forms required for attribution. It appar- 12(3) The copyright . . . shall not be infringed by ently is assumed that a filmmaker could adequately meet the duty by mention- any quotation therefrom, including any quotation ing the author of the quote in the credits at the end of the film. from articles in newspapers or periodicals that 10 Some quotation exceptions from other countries restrict its application to quot- are in the form of summaries of any such work: ing for a short list of acceptable purposes, e.g., for scholarly work, noncommer- Provided that the quotation shall be compatible cial or education purposes, or for criticism or review. with fair practice, that the extent thereof shall not 11 Some Fair Dealing jurisdictions articulate a statutory fairness test that resembles the U.S. fair use clause. For example, Uganda’s relatively modern law states that exceed the extent justified by the purpose and a permitted use is to be determined “fair” based on the following factors: that the source shall be mentioned, as well as the (a) the purpose and character of the use, including whether the use is of a name of the author if it appears on the work. commercial nature or is for non-profit educational purposes; (b) the nature of the protected work; The broadest, most flexible and potentially most useful exception (c) the amount and substantiality of the portion used in relation to the protected work as a whole; and to copyrights for filmmakers may be found in the fair quotation (d) the effect of use upon the potential market for or value of the protected work. provision of the Copyright Act. Although the application of Uganda Copyright Act (2006). This formulation is identical to the four-factor test section 12(3) was originally limited to quotation of a “literary or for fair use in 17 U.S.C. § 107. musical work,” later amendments to the Act added sections 16- 12 This was the case in the U.S. where the Filmmaker’s Statement of Best Practices 18 permitting the fair quotation of cinematographic films, sound sought to enhance filmmakers’ ability to rely on users’ rights by providing “evidence recordings and broadcasts. Thus, filmmakers are permitted of commonly held understandings in documentary practice and help[ing] to under the section to quote nearly any form of copyrighted audio demonstrate the reasonableness of uses that fall within its principles.” Association of Independent Video and Filmmakers et al., Documentary Filmmakers’ Statement of 8 For more on different national approaches, see Jaszi, “Public Interest Exceptions Best Practices in Fair Use 2 (Issued November 18, 2005) available at http://www. in Copyright: a Comparative and International Perspective.” Available at http:// centerforsocialmedia.org/files/pdf/fair_use_final.pdf. correctingcourse.columbia.edu/paper_jaszi.pdf.

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Fair dealing for example, the clip not only tells the audience that the event happened, but may also be reviewing how the broadcast news 12.- (1) Copyright shall not be infringed by any fair of the time covered that event. dealing with a literary or musical work- The second stage of the test is to determine whether the dealing with the work is “fair.” As with the fair quotation exception, there (a) for the purposes of research or private study is no statutory definition of fairness. by, or the personal or private use of, the person using the work; Incidental capture of ‘artistic works’ (b) for the purposes of criticism or review of that 15.- (1) The copyright in an artistic work shall not be work or of another work; or infringed by its inclusion in a cinematograph film or a television broadcast or transmission in a diffusion (c) for the purpose of reporting current events- service, if such inclusion is merely by way of background, or incidental, to the principal matters (i) in a newspaper, magazine or similar periodical; represented in the film, broadcast or transmission. or Many copyright laws provide exceptions to copyrights that (ii) by means of broadcasting or in a permit material to be used when it is incidentally captured in cinematograph film: the background of a film sequence. It is common, for example, to capture copyrighted music or television playing in the Provided that, in the case of paragraphs (b) and background of a live shoot. Indeed, as described below, such an (c)(i), the source shall be mentioned, as well as exception is one of the most commonly identified by filmmakers the name of the author if it appears on the work. as one they “know” and that is useful to their profession. However, the South Africa incidental use exception does not extend to the Another important and potentially flexible users’ right in South most frequently captured copyrighted content in films. African law is the standard of “fair dealing.” Under fair dealing, the unlicensed use of the copyrighted work must satisfy two criteria: The incidental use right in South African law is limited to the capture of “an artistic work,” which is narrowly defined to exclude music, ²² First, the use must fall into one of several film or broadcast footage, as well as literary texts. Specifically, the enumerated categories of permitted use; South African Copyright Act defines an artistic work as limited to: ²² Second, the use must be “fair.” (a) paintings, sculptures, drawings, engravings Unlike the fair quotation norm, the fair dealing standard applies and photographs; only to a limited range of specified purposes.13 However, the “criticism or review” purpose is potentially quite broad. A very (b) works of architecture, being either buildings large percentage of the kinds of uses of copyrighted material or models of buildings; or mentioned by filmmakers in interviews and in the meeting could be interpreted as “criticism or review of the work that is being (c) [other] works of craftsmanship used, or of another work.” Most filmmakers choose a particular piece of footage or music to quote in order to not only tell a story Thus, the incidental use right would apply to permit the filming of about the facts being portrayed in the work, but also to make a building or sculpture in the background of a scene, but not the comment about the material or its relation to other works. When capture of music playing on a radio or a program playing on a historical footage of an anti-apartheid demonstration is used, television set. To use the latter material in a film under existing law in South Africa, the filmmaker would have to make use of another 13 Section 12(1) is extended to films and sound recordings by sections 16 and 17, but only for the purposes listed in (b) and (c), i.e. “criticism or review” or “report- exception in the law. ing current events.” The extension of the provision to broadcasts in section 18, however, applies the entire fair dealing clause, including for the purposes of “research or private study” in 12(1)(a).

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Illustration for teaching Parody

12(4) The copyright in a literary or musical work Some fair dealing laws, and the U.S. fair use doctrine as it has shall not be infringed by using such work, to been interpreted in the courts, allow use of copyrighted material the extent justified by the purpose, by way of for the purpose of parody.15 The South African law does not illustration in any publication, broadcast or sound contain this exception, although such use could be interpreted as or visual record for teaching: Provided that such an instance of “fair dealing” exception for “criticism.” In addition, use shall be compatible with fair practice and the Constitutional Court’s ruling in Laugh It Off16 permitting a that the source shall be mentioned, as well as parody of a trademark indicates that there may be opportunity the name of the author if it appears on the work. to recognize a constitutional basis for a parody exception in copyright and trademark cases. Section 12(4) provides for an exception for use of copyrighted work “by way of illustration . . . for teaching.” This exception seems Illustration relatively narrow. The primary purpose of the provision appears to be to allow teachers to use copyrighted material without license in their classroom or in ways otherwise linked to their teaching. Some copyright laws provide for exceptions for the use of It may be possible to interpret the exception to apply to use of copyrighted material to illustrate a point or argument. Switzerland’s copyrighted work in a film which is intended to be used primarily law, for example, provides an exception for the use of copyrighted or exclusively for teaching. But it does not appear to give anything material “if the quotation serves as an explanation, a reference or 17 like a broad exception for all educational films. illustration.” South African law does not explicitly provide such an exemption, although such use of copyrighted material might be construed to be a fair quotation in section 12(3) or a fair dealing Limitations and Exceptions from Other Laws for criticism or review in section 12(1).

There are some significant user rights in the copyright laws of other Transformative use countries that are not explicitly addressed in the South African law. At best, only partial equivalents of some of these exceptions At the center of modern fair use doctrine in the U.S. is the question could be found to exist by liberally interpreting some of South of whether the filmmaker (or other author) has transformed the use 18 Africa’s broader exceptions, such as instances when a quotation sufficiently from its original purpose so as to make it a new work. is deemed “consistent with fair practice” under section 12(3), or is On this basis, for example, documentary filmmakers in the U.S. can a fair dealing under section 12(1). claim fair use for the appropriate use of copyrighted material for illustration or in situations where footage is excerpted to depict a historical event or to provide context for a historical narrative.19 Incidental capture of video, music, TV and text 15 E.g., Australia’s Copyright Act 1968 (Cth) at s. 41A: The exclusion of video, music and text from the incidental A fair dealing with a literary, dramatic, musical, or artistic work, or with an adap- capture exemption is a key omission. Filmmakers commonly tation of a literary, dramatic, or musical work, does not constitute an infringe- capture footage of music or television playing in the background ment of the copyright in the work if it is for the purpose of parody or satire. of the scene, and many copyright laws exempt such capture 16 Laugh It Off Promotions CC v. South African Breweries International (Finance) BV from licensing requirements.14 As discussed above, there is t/a Sabmark International and Another (2006) (1) SA 144 (CC) (S. Afr.), available at http://www.saflii.org/za/cases/ZASCA/2004/76.html. currently no explicit exception for the capture of such work in 17 Switzerland Federal Law on Copyright and Neighbouring Rights, SR 231.1 art. the South African law. 25(1) (1992). 18 This sort of exception is present in Germany’s Law of Copyright and Neighbor- ing Rights (Urheberrechtsgesetzat), 1965 at s. 24(1), which codifies the doctrine of “free utilization”: “An independent work created by the free use of the work 14 E.g., Canada’s Copyright Act, R.S.C. 1985, c. C-42 at s. 30.7: of another person may be published and exploited without the consent of the It is not an infringement of copyright to incidentally and not deliberately author of the used work.” (a) include a work or other subject-matter in another work or other subject- 19 On historical sequence as a fair use in the U.S., see American University Center matter; or for Social Media, Documentary Filmmakers’ Statement of Bet Practices in Fair (b) do any act in relation to a work or other subject matter that is incidentally Use 5 (Nov. 18, 2005), available at http://www.centerforsocialmedia.org/files/ and not deliberately included in another work or other subject matter. pdf/fair_use_final.pdf.

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In some commonwealth jurisdictions, there have been proposals on themselves and colleagues.” Our research finds a similar, and to add a separate “transformative work” category to the list of perhaps even more rigid and confining, clearance culture in permitted purposes in the statute.20 This exception can be particularly operation in South Africa. beneficial to documentary filmmakers, who are commonly transforming copyrighted material into a different context and using In the words of one filmmaker interviewed for this project, the the material for a different purpose than the original. clearance culture is produced by “a common law on the ground that everyone thinks is the law” requiring that every use of copyrighted material in a film be cleared.23 When asked if there Orphan works were any instances when South African law permitted the use of copyrighted material without clearing rights from the copyright Some copyright laws have specific provisions for the use and owner, 68 percent of filmmakers stated that there were no such reproduction of orphan works – works for which it is difficult or instances. Filmmakers explained their view that “there was no impossible to locate or contact the right holder, e.g., because the law” allowing unlicensed use of copyrighted material,24 and rights holder is not identified or not known, the author is not alive explained that they were “not aware of any circumstances when and it is not possible to determine who inherited the copyright, you can use clips deliberately without permission.”25 The general 21 etc. Many of the interviewees identified instances where it was not rule that operates in the mind of most filmmakers was that you possible to find or contact a rights holder for audio visual material must “always seek clearance for everything.”26 and that would have benefited from an orphan works provision. South Africa does not have specific orphan works provisions, a Of those who claimed to know of exceptions, many were point made in the recent Open Review of South Africa’s copyright misinformed as to the actual doctrines. For example, many law facilitated by the Shuttleworth Foundation.22 interviewees stated that they knew of an exception that permits the use of “location music”27 or “something on a TV set”28 in the background of a scene if they are “incidental”29 to the scene, or “you capture [it] in ambience.”30 But, as has been described Survey of Perceptions and above, the specific exception for the incidental capture of copyrighted works in a film is limited to “artistic works,” which do Practices of Filmmakers not include music or broadcast videos. Other filmmakers claimed to know of exceptions for the “public Clearance Culture interest,”31 for “the general benefit of the community,”32 “when it’s in the interest of the public to hear a story,”33 or “for non- 34 The first Untold Stories report concluded that filmmakers in the U.S. commercial purposes.” Although some of these considerations were operating within the confines of a “clearance culture” — a may enter the calculation of whether a particular use in question “shared set of expectations that all rights must always be cleared” is “fair,” there is no general public interest exception as such in which was “both imposed upon filmmakers and imposed by them the law.

20 See Gowers Review of Intellectual Property at 66-68 (November 2006), available at http://ec.europa.eu/internal_market/copyright/docs/links/gowers_report_ en.pdf. 23 Interview with subject [11]. 21 E.g., Canada’s Copyright Act, R.S.C. 1985, c. C-42 at s. 77(1): 24 Interview with subject [19]. Where, on application to the Board by a person who wishes to obtain a licence to use 25 Interview with subject [23]. (a) a published work, 26 Interview with subject [1]. (b) a fixation of a performer’s performance, 27 Interview with subject [34]. (c) a published sound recording, or 28 Interview with subject [23]. (d) a fixation of a communication signal 29 Interviews with subjects [5], [17], [23], and [34]. in which copyright subsists, the Board is satisfied that the applicant has made 30 Interview with subjects [5]; see also interview with subject [12] (explaining: “if reasonable efforts to locate the owner of the copyright and that the owner cannot there’s ambient sound on a radio or TV that forms part of the natural environ- be located, the Board may issue to the applicant a licence to do an act mentioned ment, I don’t feel I have to clear that”). in section 3, 15, 18 or 21, as the case may be. 31 Interview with subject [8]. 22 Shuttleworth Foundation, Open Review of the South African Copyright Act, 32 Interview with subject [9]. available at http://www.shuttleworthfoundation.org/our-work/intellectual-prop- 33 Interview with subject [25]. erty-rights/projects/open-review-sa-copyright-act (last visited July 20, 2009). 34 Interview with subject [9].

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Role of Gatekeepers Filmmakers explained that international distributors are often more demanding. Such distributors “want to make sure everything regarding copyrights has been cleared,”39 and “are Part of the rigid copyright clearance culture can be traced to much more vigorous” in requiring evidence of rights clearance a plethora of institutional “gatekeepers” that condition access that local broadcasters.40 Access to U.S. markets was commonly to distribution channels on various degrees of proof of copyright described as the most difficult, indicating a potential need for clearance. These gatekeepers are often more practically foreign filmmakers to become more versed in U.S. fair use law.41 powerful and persuasive than official institutional enforcement mechanisms because filmmakers must directly deal with gatekeepers to gain access to audiences and markets. There are also some production partners that serve as gatekeepers. For example, an individual commonly identified as one of the top archival researchers in the country stated – “If The national public broadcaster, the South African Broadcasting someone was going to assert fair use in a big way in their films, I Corporation (SABC), is the most significant gatekeeper. SABC wouldn’t take it on [as a researcher].”42 operates three of the four free over-the-air broadcasting channels that are available in most South African households. All free-to- air broadcasters must schedule minimum percentages of local content into their programming.35 In addition, SABC is subject Copyright and Clearance to a statutory charter, which requires SABC to contribute to the Although cautious practices and attitudes are in part a reflection development of the local content industry.36 Commissioning local of the practical lessons they learn from gatekeepers, filmmaker documentaries for several programs that primarily feature such attitudes toward copyright, and their dependence on it for their content (e.g., “Special Assignment”) is one of the primary ways livelihoods, sometimes reinforce the clearance culture. SABC meets its local programming mandates.

Filmmakers were largely supportive of copyright law in general Most of the filmmakers interviewed received a majority of their terms. They frequently described copyright as their “most commissions from SABC, and many do virtually all of their work important” right as creators,43 which can or should provide on SABC commissions.37 SABC’s standard contract requires “economic opportunities” to them through the ability to control producers to warrant that the film “will not include any material and license other’s uses of their work.44 Filmmakers also commonly in the PRODUCTION without obtaining the required permission, gave great importance to their “moral rights” as creators, consent, and authorization of the owners and/or copyright described as rights “to be recognized as the creator,”45 “to be holders of that material.” consulted” if the work is going to be used,46 and incorporating the norm that “you cannot re-interpret [the work’s] context or Although it is possible to read the clause as allowing reliance on meaning without my permission.”47 users’ rights to indicate when authorization from owners is not “required,” filmmakers generally interpret the clause as requiring 39 Interview with subject [17]. that that all copyrighted material in the film has been licensed.38 40 Interview with subject [20]. 41 Filmmakers stated that U.S. broadcasters “want thorough clearance information on all rights,” and the requirements were commonly described as stricter than in 35 Both radio and television broadcasters are subject to local content regulations the EU or other international markets. One filmmaker described the U.S. clearance issued by the Independent Communications Authority of South Africa. These demands as “hardcore.” Several filmmakers stated that they avoid U.S. markets regulations are currently under review as part of a larger process: the migra- because of the clearance requirements. “You know with certain films, if you haven’t tion of analogue channels to digital channels under § 61(2)(b) of the Electronic got all your clearances, it’s not worth trying to get a sale to the US.” “Only the US Communications Act No. 36 of 2005. asks for all your clearances. . . . Even European broadcasters don’t ask for them.” 36 See the Broadcasting Act No. 4 of 1999, § 6, 8 and 10. The barriers to entry in the U.S. market are “not only clearance documentation (not 37 See Unlocking the Creative and Economic Potential of the South African required locally), but also E&O [errors and omissions] insurance.” Television Sector- Recommendations for Legal, Regulatory and Commissioning 42 Interview with subject [23]. The researcher explained: “I have good relation- Practice Changes: Report to the SABC, Independent Film Producers Organiza- ships with the main archives. And they give me good deals for my clients. I’m tion and South African Screen Federation, Nov. 2008 at para. 9.2.4.6. (noting not going to jeopardize that.” that SABC commissions most of the local film content produced in South Africa). 43 Interviews with subjects [9] and [14]. 38 Eighty-three percent of the interviewees explained that that they had been 44 Interview with subject [28]. required to sign a contract (which many explained to be the SABC contract) 45 Interview with subject [11]. “confirming that you will clear all copyrighted material.” 46 Interview with subject [13]. 47 Interview with subject [34].

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Flowing from a general support for copyright, rigid enforcement Costs and Complications of Clearance practices were sometimes described as both a legitimate understanding of what copyright law should require. One Filmmakers uniformly denounced the high costs of the clearance filmmaker, for instance, responded to the question of when one culture in terms of the amounts of money and time spent on could use unlicensed material in a film with -- “A responsible seeking copyright permissions. broadcaster won’t let you.”48 Another explained that restrictive clearance rules were needed to prevent documentary filmmaking It can be difficult to receive replies from licensing inquiries, 49 from becoming “a corrupt little back-water industry.” Avoiding particularly from major Hollywood studios.56 One filmmaker stated the unlicensed use of copyrighted material was sometimes that he had a full time staff member work for six weeks only on described as a “moral” obligation arising from the filmmaker’s own copyright clearances for one project.57 position as a creator of copyrighted material who is “potentially a victim” to unlicensed use by others.50 Often the determination of who is the correct rights holder is exceedingly complex. Problems can surface when filmmakers When asked about when they would permit the use of their desire to use material from another film but the “producer can’t/ work by others, it was common for filmmakers to state that they won’t reveal the source.”58 There can be multiple claimants to a would allow use by others “without payment, but not without single piece of material (especially music), forcing filmmakers permission.”51 In many cases, the explanation for this attitude was to obtain multiple licenses.59 Material is frequently licensed from linked to the moral rights concept that the creator has a right to archives even though the copyrights may actually belong to prevent use of work that destroys the integrity of the creation. third parties.60 And ultimately rights chains can be “such a mess One filmmaker explained: that one gives up.”61

[13] Yes, I would be happy for it to be used . . . as The cost of copyright clearance was frequently cited as an long as someone asked me, for example, where overriding problem. Seventy-nine percent of the interviewees new work is created out of it. I just want to kind of stated that they have problems finding affordable archive material 62 know about it really, that’s all, so I can intervene for their films. For historical documentaries, the cost of acquiring if it is not being used appropriately. 56 Id. (explaining that “it’s impossible even to find the right person to speak to” at major studies). Other filmmakers stated that they would allow the use of their own 57 Id. material only for “a project that I believe in”52 or for a “political” or 58 Interview with subject [10]. “worthy” project.53 Some stated that they would insist on reviewing 59 Id. (“e.g., we have acquired footage though an editor or researcher . . . [who] has said he works through a pool and you can pay him for it, whoever the the use of footage54 or would otherwise “have some form of protocol producer was. Then another researcher . . . has questioned that procedure 55 or formalities” to ensure that their work was used appropriately. and said that [the first mentioned researcher] doesn’t own it. Another example where we bought rights to a photo through BAHA, and then later [someone] has claimed ownership of the photo.”); interview with subject [11] (“Sometimes we’ve cleared two sets of rights out of three, (e.g., publisher/composer, pub- 48 Interview with subject [23]. lisher, mechanical). So in one instance, one of the rights owners has come to 49 Interview with subject [24]. us afterwards and we’ve had to negotiate a fee after the event.”) 50 Interview with subject [2]. See also interview with subject [7] (“As someone 60 Interview with subject [10] (“[An example] is Danny Schechter’s huge archive who makes their own footage and owns an archive, [I] don’t don’t want of South Africa Now, which contains historical material from others’ sources, someone doing that to me”); interview with subject [17] (describing avoidance but we get permission from Danny—i.e., if someone says their permission is of unlicensed use as “as the right thing to do” “because we are all producers of adequate, we often take that as sufficient.”). intellectual property material and I think we should be rewarded for that”); in- 61 Interview with subject [5]. terview with subject [24] (“In general I support respecting copyright as abusing 62 Another key problem noted was the cost and effort of accessing historical mate- it would create a culture of undervaluing the work of my peers and of building rial held in foreign repositories. This is a particular problem faced by films about a value based film culture in SA. I have tended to always insist on championing the struggle against apartheid since the only footage of the period was gener- rights and recognition of the artists and authors.”). ally shot for the state broadcaster that then had a monopoly on all television 51 Interviews with subjects [5] and [9] (“They should at least inform us and ask. . . . broadcast in the country or for a foreign broadcaster. Accessing foreign material I get annoyed when I find out second hand.”). is “hellishly expensive” [3], both because of very high licensing fees and the cost 52 Interview with subject [2]. of travel to the repositories to search their libraries and find needed footage. 53 Interview with subject [20]. One filmmaker explained: 54 Id. [39] For example, we were trying to get images of Black soldiers in World 55 Interview with subject [5]. War II in North Africa. The way to get it was we had to travel all the way to

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archival material can be overwhelming. One described working replacing “dance music with mood music”67 and international on a film with a budget of R600,000 and facing a licensing fee with local news footage68 and cutting scenes entirely to avoid of nearly R200,000 for 20 seconds of a 1950s song and R48,000 a licensing requirements.69 One filmmaker recounted licensing a second for needed historical footage.63 One common theme was clip that contained material from a variety of sources and “to that the SABC commissions do not provide an adequate budget play safe, [we] decided not to use any of the material.”70 Another to afford licensing rates from SABC’s own library. reported that after paying the research and related archive costs to find historical footage, she “often just dropped” the footage from the film “just because I can’t afford [clearance licenses] to Red Tape and Viewpoint Discrimination broadcast or go to festivals with that archive in the film.”71 Others take pains to avoid using any copyrighted material “in order Several filmmakers described clearance issues that went beyond not to go through that whole [clearance process].”72 In sum: “If cost, including instances when they believed they were denied copyright wasn’t an issue, we would have used far more and licenses because of the viewpoint expressed in their film projects. different stuff.”73 Such viewpoint-based refusals to license obviously implicate core free-expression concerns of the kind that users’ rights are designed Copyright-clearance requirements also prevent finished films from to protect. For example, a filmmaker was denied a license to use reaching viewers. Sixty-nine percent of the filmmakers interviewed a popular song in a way that “highlights the deviousness” of the stated they had been forced to limit distribution of their films music publisher and copyright owner.64 Another filmmaker was because of the limited scope of licenses for material used in the denied permission “because I submitted a synopsis of the film film.74 Filmmakers explained that they sign licenses that only permit [and] they didn’t feel it was appropriate.”65 Another was refused a circulation of the material for a limited time75 or to particular (e.g. license to use a popular song in a film about rape.66 local) markets.76

Filmmakers also highlighted the practical problems with finding and accessing material from large and poorly administered Users’ Rights in the Dark archives. Filmmakers rely heavily on SABC archives for most of the material quoted in their films. The SABC archives were commonly Filmmakers exercise users’ rights quietly, reluctantly and often described as difficult to research and use, burdened by “red under an assumption that their actions are illegal. South African tape” and bureaucratic delay, and extraordinarily expensive for filmmakers were extremely guarded in discussing instances in the quality footage available. their own work where they used unlicensed material, even where they believed that such material was used fairly and lawfully. Restrictions on Film Content and Distribution 67 Interview with subject [21]. 68 Interview with subject [1]. The restrictive environment around use of copyrighted material 69 E.g., interview with subject [22] (“I wanted to use [a certain] song. And the rights are so hard to work around that I just dropped the whole thing.”). in films is inhibiting filmmakers from making the films they desire 70 Interview with subject [1]. and is limiting local and international access to South African 71 Interview with subject [22]. See also interview with subject [21] (“[If] there is a documentaries. battle over the budget . . . we may take the archive out to save money.”). 72 Interview with subject [16]. See also interview with subject [19] (“Whatever we Eighty six percent of the interviewees stated that they had avoided do, we tried to make sure that we don’t create content that will need licencing using desired material in a film or substituted inferior content because we knew what the difficulties of obtaining a licence were.”). in order to avoid the licensing process. Filmmakers reported 73 Interview with subject [11]. 74 Even when they are available, longer and broader licenses tend to be much more expensive. Thus, over 40 percent of the respondents stated that they London and sit at the military museum and British Archives. But just sitting had been prevented from accessing international distribution channels because you had to pay a fee for just being there, you have to pay a fee. Consider- of copyright clearance requirements. And many others reported not seeking ing all the other expenses, traveling, the use of the equipment and to view international markets at all because of the higher clearance burdens. the material you pay a lot of money just to look [at] it. The only people who 75 Interviews with subjects [10], [12], and [25]. always come out of it are the big moneyed companies. 76 Interview with subject [14] (“anything that we do with the SABC either the right 63 Interview with subject [8]. to fully exploit . . . internationally or in terms of secondary distribution or paterni- 64 Id. ties in the country have been restricted by the broadcaster.”); see also interview 65 Interview with subject [14]. with subject [14] (“I cleared the rights to a track of music in the film, but when I 66 Interview with subject [22]. sought to distribute in the US, they wouldn’t allow that.”)

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Sixty-six percent of the respondents stated they have used In the Cape Town workshop and consultation meeting, several copyrighted material without a license at least once. But most sequences from South African and U.S. documentary films were described such use as the result of being unable to obtain a shown to illustrate the potential value of the fair quotation or fair license, rather than the product of a considered decision they dealing clauses to filmmakers. This proved to be an effective it was their right to use the material. One filmmaker explained, conversation starter. In the ensuing discussion, the filmmakers for example, that he never uses copyrighted material “without showed considerable willingness to discuss instances when they seeking a license, but sometimes without obtaining a license.”77 used similar quotations without licensing copyrights, often under the assumption that their actions were illegal. The discussion ended A small number of filmmakers stated that they used unlicensed with emphatic statements that education about users’ rights is material in their films openly as an act of protest or out of moral needed in the filmmaking community, and that the dissemination conviction. In one particularly dramatic example, a filmmaker of such knowledge would liberate filmmaking practice.83 described finding BBC video in the ANC’s archive, which had footage of his own arrest that ultimately led to him being imprisoned on Robben Island. He explained: Shared Views on a Fairer System

As far as I know, the clip belongs to the BBC. But As we have seen, many users’ rights are defined, at least in part, I used it in a film. And I did not and will not ask in terms of a “fairness” test. This general, and even amorphous, permission to use my images, which have been concept is one that lends itself to different definitions in different used all over the world without my consent.78 areas of information practice (scholarship or teaching or filmmaking, for example). Throughout the interviews and the Another interviewee explained the use of “less than three seconds final consultation meeting, filmmakers expressed numerous of SABC news footage in a music video” as “an act of defiance conceptions of what fairness standards should apply in 79 against SABC.” connection with the unlicensed use of copyrighted material in South African documentary film. A few filmmakers recounted instances of deliberately using incidentally captured music in the background of scenes; however, as noted in the Legal Review section above, such uses Filmmakers generally believed that, as a matter of fairness, are not explicitly authorized by the Copyright Act’s incidental incidental capture of music, video, advertising and other use provision. There were also a few references to having evidence of mass culture should not have to be licensed. Indeed, used footage or music based on “fair use,” but these were not many were surprised to learn that this was not the current state accompanied by explanations as to which users’ rights in South of the law for music, broadcast images and text. Another strong African law (which does not contain a fair use provision per se) norm that expressed throughout the process was that use of the had been relied upon.80 work of others should be properly attributed. This idea was an extension of the strong affinity many filmmakers expressed for core moral-rights concepts. Some filmmakers were more specific: One explained that he had used footage from the motion picture, The Matrix, as a “comment on society” and as a type of “metaphor.”81 Another filmmaker At the Cape Town workshop, there was considerable discussion accurately stated that the law permits unlicensed use “if you are around the need for “fairness” standards for the use of art, commenting on a particular copyrighted clip,” but did not give a music and stories that are traditional to indigenous groups or specific example of having done so.82 personal to individuals. These views were often framed as an extension of the moral rights concept to include the principle that groups, as well as individuals, should have, at a minimum, 77 Interview with subject [5]. interview with subject [10] (“This process is so labor-intensive, . . . at a certain point we just say that we’ve done enough!”); a right to recognition for their contributions – and perhaps other 84 interview with subject [23] (“[I have used unlicensed] historical material where forms of protection as well. Some filmmakers also expressed the I do not know where the director got it from. Or where I recognize something and I cannot identify who owns it.”). 83 See User’s Rights and User Wrongs, a short film about the project focusing on 78 Interview with subject [9]. the filmmaker workshop held in Cape Town. 79 Interview with subject [24]. 84 See Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: 80 Interview with subject [6] (“we used a song as fair use”); Interview with subject A Reappraisal of the Tensions Between Individual and Communal Rights in Africa [39] (“In [one film]—used some material without licence—Fair Use.”). and the United States, 48 Am. U. L. Rev. 769 (1999). See also World Intellectual 81 Interview with subject [25]. Property Organization [WIPO], Intergovernmental Committee on Intellectual 82 Interview with subject [11]. Property & Genetic Resources, Traditional Knowledge and Folklore, The Protec-

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idea that people from indigenous or historically disadvantaged archives. Since the meeting, the South African History Archive backgrounds should have greater rights to access materials working with the Visual History Archive at the University of Cape about or originating from their communities. Town released the first version of its Audiovisual Audit Report: The South African Liberation Struggle.88 The report recognizes Many filmmakers expressed the view that assessments of the that “one of the greatest drawbacks facing any researcher” fairness of unlicensed uses of copyrighted material should be of film history “is that no easily accessible databases” exist sensitive to context, including how the material will be used, and of where to find source material. The audit responds to this the purpose and budget of the project. Filmmakers expressed need by cataloguing over 30 historical footage archives and a desire to allow a greater leeway for the use of copyrighted hundreds of documentary films that provide public access to material for a “public interest”85 or “educational” film or for a historical footage on the liberation struggle in South Africa. “non-commercial” purpose.86 Filmmakers commonly expressed beliefs that there should be greater access to historical material. In particular, many filmmakers argued that there should be much freer access for local filmmakers to historical material held by the Recommendations SABC, in part because of the history and public financing of the institution.87 A similar view was expressed toward material about In consideration of the legal analysis, survey and workshop South African history held by foreign archives. deliberations, the DFA, the BFN and the American University programs adopted the following recommendations: Need for Alternative Archival Access Short Term Goals Filmmakers identified users’ rights as part of a possible solution to the problems they face accessing archival footage. They recognized, however, that the exercise of users’ rights requires Develop a consensus ‘best practices’ document knowledge about and access to quotable material. The organizations agreed that a best practices statement would be useful for three related and complementary purposes. First, The survey indicates that there are a large number of video and image the statement could be used immediately to promote greater archives of various kinds, many of which are not commonly used or understanding and use of existing users’ rights, thus helping to widely known. Although the SABC archives are by far the most used lessen the burdens imposed on documentary film production archive for filmmakers, in all, filmmakers identified over 60 archives that by the clearance culture. Second, because “fairness” is a key they had used. Many of these archives are public or low-cost. concept in South Africa’s existing users’ rights provisions, a filmmakers’ statement could influence the development of the At the March meeting, filmmakers heard from representatives of law by lending specificity to this general ethical concept. Third, several organizations that are working on expanding access to the statement would be useful in the legislative reform process, archival materials for the general public. Filmmakers expressed to help filmmakers identify which aspects of the current law are the belief that it would it would be beneficial to create a worth defending and which would benefit from reform. catalogue of material available in the various public and private tion of Traditional Cultural Expression/Expressions of Folklore: Overview of Policy Develop a legal advice network Objectives and Core Principles, WIPO/GRTKF/IC/7/3 (Aug. 20, 2004); see generally http://www.wcl.american.edu/pijip/go/traditional-knowledge 85 Interview with subject [3]. Compounding the problem of a lack of accurate knowledge 86 Interview with subject [2]. about copyright law and users’ rights, many filmmakers stated 87 Interview with subject [8] (“If something is publically funded, then there is a that they do not have ready access to affordable legal advice moral right to use copyrighted material without clearance.”); [34] (“One as- or other sources of guidance on legal questions. Filmmakers sumes the state has [. . .] compensated for the use of material [that is archived described a very small copyright bar consisting mainly of nationally and owned by the state]”). Many also argued that South African film- lawyers who serve content owners and provide guidance that makers were specially entitled to access recent historical material held by foreign broadcasters. This claim was articulated both as an expression of the social 88 Audiovisual Audit Report: The South African Liberation Struggle (South African History need for the material and also as a matter just desert, since political activists Archive 2009). Available at http://www.saha.org.za/publications/audiovisual_ made the footage possible and therefore “paid [for the footage] with our time audit_report_the_south_african_liberation_struggle.htm and by risking our lives.”

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reflects the interests of those clients. Others stated that their main Longer Term Goals sources of guidance are from other filmmakers or researchers. There are, however, a number of lawyers in academic institutions, The organizations also agreed upon a list of activities that may not non-governmental organizations, and private practice who are be completed during the next 12 months, but will be increasingly sympathetic to the interests of documentary filmmakers and important in coming years. These include: are knowledgeable about the law. A legal advice network would aim to identify, educate and mobilize the existing legal ²² Articulate additional law-reform goals, such as resources that could provide free or affordable advice and positions on copyright term extension; assistance to filmmakers.

²² Research law-reform strategies, including Develop a list of pressing copyright policy proposals research into constitutional free expression grounds for user rights in copyright ; Although many of the filmmaking organizations have been working on certain copyright-law reform proposals (especially ²² Recommend ways in which documentary ones related to ownership interests in commissioned work), none filmmakers can create or contribute to projects in has been working on the law’s users’ rights provisions. It is nearly South Africa to audit archival and documentary certain that these provisions will be reconsidered as part of the footage (publicly and privately held) and to copyright reform process, and that there will be strong pressure create “open” archives through which material from copyright owners to “modernize” copyright by making would be more widely available to filmmakers users’ rights less generous. Through this project, filmmakers have and others; identified a number of areas for potential positive reform of South African users’ rights. These areas range from issues about which ²² Develop model transfer agreements for footage there appears to be broad consensus on a proposed revision, such from filmmakers’ personal archives to open as expanding the incidental use exception for “artistic works” to archive projects; and include audio and broadcast video sources, to issues where there is much less current consensus, such as whether the law should be ²² Investigate the utility of international best amended to include a U.S.-style generalized “fair use” clause. The practices statements that attempt to harmonize organizations agreed to work together to develop a consensus list users’ rights across borders. of desired reforms that could be communicated to stakeholders and the government during the impending law reform process.

Develop standards for the ethical use of art, music and stories that are traditional to indigenous groups and the personal narratives of individuals

As discussed above, there was a broad consensus among filmmakers that fairness standards must be contextual, and should depend, in part, on the nature of the material beingused. Certain categories of material were singled out as requiring special attention in the South African context. Traditional culture is an important input into South African documentary filmmaking, but one that raises special fairness issues of proper attribution, among others.

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Please describe the sources of copyrighted material Appendix: Excerpts from that you have used most often.

RESPONSES TO QUESTIONS Archive or repository, 100%

To safeguard the confidentiality of the participants in the study DVD, CD or other retail source, 57.5% and encourage truthful exchange of information, the quotations included in this report have been identified with a distinguishing Incidental capture of background activity, 42.5% number rather than by name. Off-air capture, 17.5%

INFORMATION ABOUT RESPONDENTS Other, 22.5% Have you ever obtained permission or paid for the COPYRIGHT EXPERIENCE rights to use copyrighted materials in your films?

What kind of material have you used in your films? 100% said yes; 0% said no.

Television news archives, 72.5% Are you aware of any circumstances under which the law in South Africa allows you to use copyrighted Video or film from commercial or historical archives, 87.5% material in your films without a license from the Stock footage, 67.5% content owner?

Sports coverage, 17.5% 32% said yes; 68% said no.

Newspaper archive, 67.5% [8] I think that there are cases where you can use a public interest argument for Fair Use. If something is publicly funded, then there Ambient music (music that was playing in places where you were is a moral right to use copyrighted material without clearance. filming), 77.5% [11] If you are commenting on a particular copyrighted clip, you Mood music from library, 87.5% can show it.

Commercial music released on CD used on a music/effects sound [11] If you film a performance, you can use it, or even a person. If track, 75% they let you film it, they can’t later turn around and say you need my permission. Photographs, 85% [19] There is no law, unless it’s content that is in the public domain. Clips from other documentaries, 55% [23] Only if its incidental - and I don’t even know if that’s the law. Feature films and TV shows, 47.5% I’m not aware of any circumstances when you can use clips Music videos, 15% deliberately without permission, and a responsible broadcaster won’t let you. Material from the internet that is not covered above, 37.5% [33] The exception is when I can find the source by myself who Other (posters, historical papers, literary works, commissioned then repeats, probably what is actually copyrighted. I think it’s an works, clips from radio archives, open source), 15% exception because the effort is mine to go and re-produce what has been produced or to re-originate what has been copyrighted,

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for instance, if I wanted to do [a story about a famous woman] commercial purposes. When you use it like that, you are using it and I could then find [that woman] and speak with her even in a fair way. though she repeats what has already been copyrighted, I think it’s my right not to go through the copyright owner. It is my right [10] Circumstances where you cannot find the rights holder. Use not to go to copyright owner, but to the source of the material. of 15 seconds or less. Where broadcasters get rights to cover something, it should go into public domain after a certain period, Under what circumstances, if any, do you think it is say 10 days (e.g., Mandela’s release). Also, there are historical acceptable for you to use copyrighted material in your events that overseas broadcasters hold rights to, and I feel that as a South African producer we may have more right to that films without seeking a license? material than them, certainly after a period such as 5 years.

[1] If the material is very old and one cannot trace the owner of [11] For a place like South Africa, where the heritage has been the material, and if the program is for educational use, and for documented by foreign broadcasters, they shouldn’t then charge public television. us first-world rates to use that footage.

[2] When it’s for the public good. [I] also [give] material away [12] Using material in public domain to prove a point—i.e., to when it’s for the public good, or good cause, or not for profit. If construct an argument. it’s not for profit then of course no charge. If it’s for the greater good, then fine. [14] Basically I think the material from within the national broadcasters should be available for use, for a particular film/ [3] When it’s in the public interest. The Broadcaster should allow production without the requirements of payment to use. usage of archive footage also when it’s in the public interest. [16] I think when you are not making profit from the actual content, [5] When it’s incidental, i.e., when you are doing a doccie and when it’s for educational use then I think you can use copyrighted you capture something in ambience. material without a license, when it’s a student doing research and also school projects. [6] In all news broadcasts, worldwide (not just in South Africa)— using news clips to show the state of the nation, for example. In [17] Like incidental music in the scene while you’re shooting. [one of my films, we] used a news clip about the death of [a Sometimes it’s defined—you know which song that’s going to man], and [I feel that we] shouldn’t have had to pay. play—given the circumstances I don’t think you should really pay for that. [7] If it’s in the public interest; if it’s information that is in the public domain; if it belongs to the public broadcaster (news or [18] I think there should be licenses for certain groups, so people magazine)—cos we actually pay for that stuff to be created; who don’t have access to funds and they have to pay thousands different with ETV and MNet because they are commercial per minute for SABC stock footage or archives. I think sometimes operators. SABC we should be able to use their stuff for free; there should be leniencies. I think if it’s not done for profit and for National Archive should be free; Private Archive rates should a social cause, those kinds of aspects. be controlled, or different rates for different usage; If filmmaker is using it in insignificant way in order to demonstrate something [22] I think that news, and things that are in a public archive—I else, then no payment should be required (i.e., 4 seconds from don’t think we should have to pay for that. We can pay for the Fox—they quoted starting price as $10,000). sourcing of it, but the copyright belongs to SABC, I think that’s pretty unfair. Same with newspapers . . . . I think, anything [8] [You should be able to use] stuff that is part of the public somebody has created out of their own, unless they say you can, culture—Mandela’s face for example . . . . I would try to get away you shouldn’t really be using it. Also, incidental things; it would with using ambient music in a film, whether recorded or whether be easier to make documentaries if I could show people singing done in front of the camera. along to a song or watching TV.

[9] Where the material is going to be used for educational [23] Incidental. If there is a painting or photo on the wall, or a TV purposes and the general benefit of the community and for non- set is on - but not if you are broadcasting something on the TV

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set for that program. Otherwise, none. Newspaper headlines & without seeking a license. If I know that [a particular piece of still photos are a great way to tell a story. If you can’t afford the material is subject to] copyright, I would have to have an argument footage—use that! [for why I would not have] to get clearance before using that item in my film. [We] tried to get copyright clearance on songs used [25] Public interest (when it’s in the interest of the public to in [a] film. We used [a song] as fair use. BBC also had blanket hear a story, and the story can only be told using copyrighted music clearance. Can’t sell or release it cinematically or on DVD, material); when it’s unavoidable (e.g., shooting a scene which because they don’t have the copyright clearance - even though is unfolding with an advert in back inadvertently). When you the moral argument is for the song usage. grow up surrounded by a set of images, those images become part of your dictionary. We now learn more from AV sources [9] With historical archive material from the apartheid days, the than from books. BBC for example came and did stories when cops wouldn’t allow them in and we (the activists) escorted them in. We paid with [30] As documentary filmmakers, we should be allowed to use our time and by risking our lives. By comparison, the BBC and news or current affairs reportage that occurs while we are making other news agencies paid very little. Why should we now have our films as a reflection of the time and place in which the story to buy this footage from the BBC and others. It was in our interest plays off. for the world to know, because there wasn’t fair reporting. The best example is some footage [that] I discovered when I was [34] Incidental location music in short bursts to create ambience doing archive research at the ANC. I was looking through some or where unavoidable. Material that is archived nationally and BBC footage from the struggle days, and I kept being drawn to owned by the state must be accessible to creatives to use in a particular clip. Eventually I realized that the clips [were] of me documentary. One assumes the state has then compensated for being arrested by the security police in 1976. As far as I know, the the use of material. clip belongs to the BBC. But I used it in a film. And I did not and [37] I think that time and newsworthiness should count. Also, will not ask permission to use my images, which have been used [exceptions should be made] if you’re quoting it and appropriately all over the world without my consent. . . . In my forthcoming film, recognizing the source. For example, I did a commercial parody I am facing two issues. One is historical material about [a political of the “I Have A Dream” speech. figure] that is included in documentaries. The other is commercial reggae being played by rastas that I am filming at a dance hall Have you ever used copyrighted material in a film or similar place. In both cases, I feel I should be able to use the material. With the music - my focus wasn’t on the music - but without seeking a license? how do you go into a dance hall and tell them to stop the music because you are filming? 66% said yes; 34% said no. [10] Where it’s a short piece of footage and the obstacles to [1] We always seek clearance for everything . . . . Used music from clearance are enormous, and I’m working against deadline, an artist that was not in the country at the time, and a friend of I’ve gone ahead and used it, e.g., when we wanted to use a the artist told him that he could. Johann insisted that the artist clip from MGM, it’s impossible even to find the right person to gave email consent for the usage. She was in London on tour, speak to. But for international use, we often then have to clear and she emailed her consent. it. Another example is footage embedded in another doccie, and the doccie producer can’t/won’t reveal the source. Another [5] Never without seeking a license, but sometimes without example is where there appears to be a dispute about who obtaining a license. Music copyright: seek copyright owner but owns copyright – e.g., we have acquired footage though an cannot find the owner. Or copyright is in such a mess that one editor or researcher . . . [who] has said he works through a pool gives up. In making one film, I could not find copyright owners, and you can pay him for it, whoever the producer was. Then not known or copyright is in dispute. Used the track anyway and another researcher . . . has questioned that procedure and said usually paid one person, and if copyright owner cannot be found, that [the first mentioned researcher] doesn’t own it. Another used the track because the track is obscure. example where we bought rights to a photo through BAHA, [8] [We] used [some classic, old] songs—an old man playing— and then later [someone] has claimed ownership of the photo.

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Where there are two claims I pay and get clearance from the [32] I have allowed my distributor in Australia to seek sales of cheapest. A final example is Danny Schechter’s huge archive of material where I don’t have prior permission from SABC, but if I got South Africa Now, which contains historical material from others’ a sale and then were sued I would have a counter claim—SABC sources, but we get permission from Danny—i.e., if someone says is selling my material without paying royalties. their permission is adequate, we often take that as sufficient. This process is so labor-intensive; there comes a point where you If you have not used copyrighted material without draw a line. We have had someone working for say 6 weeks seeking a license, can you explain why not? just on clearances for a project . . . ; at a certain point we just say that we’ve done enough! Whatever is outstanding, so be it. [1]. Combination of a moral decision and because it’s so easy to pick up—and then be sued over something as silly as not getting [11] Music—have encountered problems. So many rights to clear. the necessary permissions. Sometimes we’ve cleared two sets of rights out of three, (e.g., publisher/composer, publisher, mechanical). So in one instance, [2] It makes one too vulnerable. As someone who is potentially a one of the rights owners has come to us afterwards and we’ve victim to it, one has a moral obligation to work both sides of the had to negotiate a fee after the event. spectrum and to uphold the law.

[12] [I]f there’s ambient sound on a radio or TV that forms part [3] It would not be safe to do so, and I wouldn’t want to end up in of the natural environment, I don’t feel I have to clear that. [re: litigation. Mandela walking out of prison] that footage in my opinion is in the public domain. [7] [My] own moral view on the matter. As someone who makes their own footage and owns an archive, [I] don’t don’t want [13] Because we were not sure of the laws. We downloaded stills someone doing that to him. from the internet to use in our productions. [14] Because I have operated outside of this environment where [16] Research purpose at college but other than that not for not clearing or not seeking information with acknowledgement public broadcasting. can result in injunction of a program or a film, so in the interest of ensuring that doesn’t happen, we just don’t use it. [23] Historical material where I do not know where the director got it from. Or where I recognize something and I cannot identify [15] . . . My understanding of using any material especially for who owns it. Then I recommend putting a [disclaimer] at the end broadcast it has to be cleared, so maybe I don’t know enough of the film to say every effort has been made. about it and I don’t know what the exceptions are . . . . For example, I know if I use the Michael Jackson track for ten seconds [24] I used less than 3 seconds of SABC news footage in a music or thirty seconds, I would be liable for something like thirty million video; this was done in the spirit of an act of defiance against dollars and it’s just totally outside . . . . Generally, I wouldn’t use SABC, which blatantly abuses IP of authors and creators. a commercial track at all, except if I have an understanding with the publisher or with the artist. So without a formal agreement [25] I used clips from [from a popular film] in [one of my own films] then I wouldn’t use it and if there are exceptions, I would like to where I was commenting on the system, which is built on the basis know about them. of control. I think it was justified because [the popular film] is a metaphor for the state of our society. I was using its message in [16] I think it’s the red tape that goes around SABC where you have order to comment on society. Also when it was unaffordable or to go to this person and must be approved by that panel, by the too difficult to clear material. In fact, you can’t illustrate history time you are done you’ve already lost three weeks of your time these days. What do you do when material is too expensive? which you need to edit, so obviously it’s knowing, and also the I use history to illustrate the present. I don’t believe the history turn-around time within the SABC & employees is quite drastic so should be copyrightable. BBC and ITN for example should not therefore the new people don’t really know, so you can establish have a monopoly on South African history images. It’s like them a relationship with someone new then in three weeks they are out saying they own my family album. of the SABC so it kind of disorients the producer and the filmmaker

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in terms of establishing the relationship and understanding all the [14] No, I haven’t done it on the basis of gut feeling, we have red tape and all the proto calls in getting stock footage. licensed purely on the basis of requirement even when we have felt that the requirement should not be required. [17] Well because we are all producers of intellectual property material and I think we should be rewarded for that. It’s the right [16] Yes, fortunately as a business we’ve grown quite a bit, we deal thing to do. with large budgets so therefore we budget [for rights clearance] from the onset. Se we always pay for stock footage [and] library [18] I think ethically was a reason why we would not do it so I guess music; it’s always in our budgets. it wouldn’t be safe. [16] You experience a lot of those things where you feel you [20] I believe that it’s illegal and that I would be opening myself belong to the country and the celebrations of what happened up to be sued. And I know of a time when Curious pictures used a in 1994 should belong to the country. . . . So at times there’s been piece of music and were sued, and it cost them R 80 000. points where it’s like you know this is part of my heritage. Not all of those actors that were there in that footage were actually [22] I did not know of any exceptions. paid, so it belongs to the country. But yet you know I had to [24] In general, I support respecting copyright as abusing it would swallow my pride and go pay [to license the footage] to move create a culture of undervaluing the work of my peers and of the process forward. building a value based film culture in SA. I have tended to always [21] eMakhosini photos of chiefs. I think we maybe shouldn’t have insist on championing rights and recognition of the artists and to pay for heritage photos when it’s for educational purposes. authors... otherwise we remain a corrupt little backwater industry.

[33] I have never used copyrighted material without seeking a Have you ever decided not to use material in order to license or permission, because I have believed that it would not be avoid having to license it, or because of difficulties in safe, that is, it would not be legal; and, from a moral perspective, obtaining a license? I thought it would be plagiarism, simply plagiarism. 86% said yes; 14% said no. Have you ever licensed and paid for material just to be safe when your gut feeling was that legally you didn’t [1] We licensed a program—on which [I] was the EP—it contained CNN material and from a variety of sources and [we] could not have to? determine whether the person who sold [us] the program had the necessary clearances. To play safe, [we] decided not to use any 28% said yes; 72% said no or didn’t have a response. of the material that did not belong to [the seller] and that she [1] We always seek clearance for everything . . . . Used music from could not prove the clearances for. [We] substituted with SABC an artist that was not in the country at the time, and a friend of stock footage. the artist told him that he could. [I] insisted that the artist gave [2] Occasionally too expensive. Or copyright holder has put too email consent for the usage. She was in London on tour, and she many conditions on how it can be used. Clear minimum rights emailed her consent. than what you need because of cost of clearing worldwide rights. [8] In order to avoid legal battles, I have. On [one movie] I paid Made a query on Mandela footage and was quoted 8000 Euro for using the song in South Africa—the BBC blanket clearance per 30 seconds from the SABC. covered these rights. [The owner] said these rights don’t apply [7] Loads of material owned by Pathe, which is incredibly in South Africa. We made a compromised deal with [him] to get expensive. Outrageous amounts for archive. SABC footage, around this. which is very expensive and not such good quality. So then one [12] Photos taken by famous SA photographers where I felt a fair turns to get around it, do without it. Too painful dealing with Sias use argument might have applied, but didn’t want to take the Scott. Too much of a mission—written repeatedly to SABC for risk. stuff, and never got a reply, even when requesting an invoice!!

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[8] Shot film over 3 years. Edited over 9 months. Hard production expensive to get out of the SABC, I’ve often just dropped it, even financially and otherwise. No salaries for editing period, and after having sourced it, just because I can’t afford to broadcast or hardly for production. Entire budget 600,000—want to use 19 go to festivals with that archive in the film. seconds of archive and are being quoted R48,000 per second. Would add huge production value, but would be approx 9% of [27] I can’t recall specific examples but I know there have been budget if they went ahead. People not getting salaries, but SABC many times I’ve wanted to use stock footage but have had no taking money on archive that they got free. Another example: I budget for it and therefore chosen not to even begin searching. wanted to use about 20 seconds of a version of a song by a band It would be great to know about footage that would be available from 50’s that was found through Gallo’s archives. They wanted for use free of charge. $22,000—almost 50% of the budget for entire film. Their argument [33] Budgetary constraints. Some of the material we used had was they wanted the money or nothing. been provided by the WITS History Workshop and it was through [9] In [one film]—used some material without license—Fair Use. their access to the material and them paying for the material that We cleared and paid for some. But we used less than we would actually we’ve got the material. But some material like the Jim have liked due to cost. We refused to pay their inflated research Bailey archives has been rather beyond the reach of our budgets costs for archive as well, due to their inefficiency in finding the and we have avoided . . . it and rather try to go to narrative clips we asked for. sources, you know, the original sources of the material. The main cause of avoiding getting a clearance or a license has usually [10] Where we know the cost is going to be prohibitively expensive been financial because archives don’t come cheap in South (700 Euros per 30 seconds). International rights holder—unique Africa and the red tape before you actually get to the material piece of footage. Replace it with something. that you want is quite cumbersome.

[11] In a number of cases, if copyright wasn’t an issue, we would [35] We recorded a local band in Sudan and later discovered have used far more and different stuff. In this stuff on human they were very popular there and decided not to use it. evolution, there is no material, so you are always looking for stuff. Have any South African industry players, such as [16] As a young creative, I prefer to shoot my own footage in order broadcasters, funders, required you to sign a contract not to go through that whole [process]. And it makes business sense to me to shoot my own footage. confirming that you will clear all copyrighted material?

[17] It’s a financial factor. 83% said yes; 17% said no.

[19] Whatever we do, we tried to make sure that we don’t create [4] Every contract with broadcasters in South Africa has such a content that will need licensing because we knew what the requirement. This is also true elsewhere. difficulties of obtaining a license were. [8] SABC - standard contract. . . . The grant funders aren’t that [20] Many times. On [one] film there’s a lot of footage we’d love particular. I would not clear archive and footage for films showing to use but we simply can’t afford it. To use all the footage we want at festivals only. Generally don’t make money from those deals. to use would cost nearly a million Rands. Have you ever been asked to provide evidence of [21] Yes—eMakhosini there is a battle over the budget, so we may copyright clearance? take the archive out to save money. Wedding show—sometimes we replaced the dance music with mood music—didn’t work 45% said yes; 55% said no. very well—harmed the production. [33] No, they (e.g., SABC or broadcasters in general) have [22] For example, I’m making a film . . . about women, violence and really not been strict about that. They are very lax in that the law in SA, and I wanted to use [a certain] song. And the rights regard, because, I think, maybe it’s because you might are so hard to work around that I just dropped the whole thing.... take the blame, they might pass the blame unto you. And EMI is giving lots of problems.... Same with archive, archive is so

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it’s actually easier for them if they can use material without [24] Usually done by pricing material out of range. On one or having to pay for it. As a result, many filmmakers do not know two occasions, international producers . . . denied FRU archive what rules apply in that regard. license on their work because they did not trust our regulatory environment or our capacity to ensure the security of rights - a Have you ever been refused a license to use fair enough call. I hope that someone has responded to this copyrighted material? question in relation to the Lion’s Tale - that is a very NB one and VERY CLEARLY illustrates US cultural colonialism and monopoly 31% said yes; 69% said no. protectionism that keeps the rest of the world at bay in terms of being able to profit from original work. [1] Yes. ETV, which is a free-to-air broadcaster, refused the license to use footage, which they owned. They insisted on an on-air [33] In fact, I don’t even understand who actually is supposed credit, and the SABC felt it tainted the program. to issue the license. But I have been refused access to material that is copyrighted. For instance I wanted to do a film about the [3] Yes - [for one song in a film]. [The owner] penned the lyrics to the origins of prison gangs from a book [ . . . ] the publisher referred song, but the actual music [was written by someone else] - who me directly to [the author] and he actually placed conditions never received royalties for his work. [I] finally cleared broadcast that amounted to refusing the material that I wanted to use. rights using the blanket broadcaster clearance of rights. Thus, this work is only licensed for broadcast. Have you ever been forced, in order to clear material, to accept a license for a limited term that could [6] When I was doing an educational piece - early days of AIDS. I contacted a music company and asked to use a song, and I was prevent you from distributing your film at a future turned down. date?

[6] [I] made [a film] commissioned film by SABC – a sociological 69% said yes; 31% said no. report on crime. [I] went to SABC and requested more archive for the film than what the budget sustained. SABC said no. The [10] Some copyright owners limit the timeframe to 5 years. . . . reasoning was no money, although the archive was their property. Sometimes I accept the licensing terms and then hope that in 5 They denied the right to use their own archive in their own movie, years time they won’t check! We never clear for more than 10 for which they owned copyright. The film lost production value years, because our ideal “in perpetuity” is just too expensive. and was a lesser film than it could [have been]. [12] I have bought a 3-year license in the hope that no one comes [8] The people that own the publishing rights to [a popular song] after us. denied me a licence because the film highlights their deviousness and I did not offer enough money for them. On another film, I [25] I buy the shortest/cheapest license (e.g., from SABC I buy the cleared the rights to a track of music in the film, but when I sought local license) irrespective of where the film is to be used or for to distribute in the US, they wouldn’t allow that. I had to replace how long. Nobody ever follows this up. Anything else would be the track with a composer’s track. unaffordable. I never pay for the actual duration I use. And I always exclude US because of the cost. [14] Basically in one instance, a piece of music which I start to use and I was not given permission because I submitted a synopsis Has the assertion of copyright license renewals ever of the film they didn’t feel it was appropriate, I will also start to required you to withdraw one of your films from use archival footage and been denied usage pretty much on the public circulation? same basis.

[22] Yes, Music, many times. With [a popular song]... in a film 24% said yes; 76% said no, or not applicable. about rape, you may not want your song to be associated with [2] [One film] can’t be distributed because of a limited license (5 that. Often I just get no and I don’t know why, they don’t want years) that has now expired. their song covered or used.

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[3] He has had to limit the duration of the license due to the cost. on all rights including personal rights of involved characters, and all footage, music, etc. European stations are less demanding [8] [In one film, the] music licenses have expired, but the film is but still more demanding than the SABC by far. still selling. Conclusion: to use as little as possible of copyrighted music - pre-recorded. [Another film]: wanted to clear a . . . track [12] US are hardcore - Europeans less. With [one film] I am clearing ($18,000) - so they got composer to do similar track for a fraction for 3 years not seven - hoping ITVS doesn’t find out. Am working of the cost. to get E&O insurance.

[12] We didn’t clear educational or cinema or DVD rights. [17] [W]hen you’re selling a film overseas, they want to make sure everything regarding copyrights has been cleared. [38] I could not afford to clear music beyond one local broadcast. [20] They are much more vigorous. What all the foreign broadcasters Has the clearance of rights ever prevented you from are doing is ensuring that there can be no legal comeback, e.g., international distribution of a film? Al Jazeera. Recorded a band in Madagascar - had to take it out because we couldn’t show that we had the band’s permission to 41% said yes, 59% said no or not applicable. use the piece. Was a traditional band in a bar- we gave them some money. But Al Jazeera was not satisfied with that. [3] To clear world rights for a title is extremely expensive. These days, producers work backwards: They clear rights as they sell to What problems if any have you encountered with territories. music copyright? [9] For a certain period we didn’t even bother trying to distribute [2] Music copyright - being in business for 20 years - most difficult our films internationally. thing she deals with. . . . Enormously complex. Would be great if [10] Not only clearance documentation (not required locally), there was one body. but also E&O insurance (Errors and Omissions insurance for 3 to 5 [3] [We wanted to use a popular song in our film.] One of the years of first transmission). Can be $12000 for doccie feature. partners was BBC - Agreement is MPCCA about blanket clearance [14] Well again anything that we do with the SABC either the right given to broadcasters that allows them to transmit content if it’s in to fully exploit whether internationally or in terms of secondary the public interest. [We] never got the rights from [the copyright distribution or paternities in the country have been restricted by owner] in the USA, for usage because it reflected him in a bad the broadcaster. light. It can never be shown - other than on television.

[24] You know with certain films, if you haven’t got all your [4] The SABC’s rights budget for music are always too small and clearances, it’s not worth trying to get a sale to the US. Only the they want to own the music if it is originally composed. US asks for all your clearances. People do forge them at times. [6] Often the most sticky area. The AIDS educational film was one Even European broadcasters don’t ask for them. example. Maybe problems are more perceived as in: the admin will be too intense in obtaining clearance, so one goes for library With films for international distribution, do you music instead. face increased or decreased demands from foreign broadcasters, funders or others to provide evidence [8] Getting access to credible explanations - SAREL is difficult to work with. Royalty collection is completely confusing . . . . SAREL - of clearance of rights? gave him a form for music clearance where it was clear they had no idea what they were doing. Music industry is dirty, so access to 55% said they face increased demands to provide evidence of credible sources of information is problematic. What would help rights clearance; 45% said no or couldn’t answer because of no is a fair use guiding principles when it comes to music copyright in experience. South Africa. Also, when does copyright expire? [4] US stations especially want thorough clearance information

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[14] The key problem with music usage, let’s say in the case of Huntley’s UK, Russian state archives, Afravision, SABC and their projects, is that they don’t have standard blanket Promarte, Mozambican National Archives, “that agreements for use of what they call commercial music, which guy’s garage”, Zim TV, Zimbabwe National Archives means as a producer you’re forced to pay for the clearance of (Film Section), Film Resource Unit (FRU), Local that music. If you’re operating within an SABC budget, that is production houses’ archives, UCT archive project, not viable. It doesn’t make sense at all. That is a big problem UCT African studies unit, Iziko, Killie Campbell because what it means is that there is wide range of music that Library, Freddie Ogetrop, Etv, Government, District Six Museum, Baileys, Public museums and libraries, will be appropriate for a particular project that will be excluded ANC library, Johnnic, MGM, & MNET because of the absence of SABC agreeing to what is standard in most markets around the world. [29] I want to use CBC archives that I shot personally (I was [23] In the Mandela exhibit at the Apartheid museum, we producer/director) in 1990, 1992, 1994, but I can’t access it without wanted to use a clip of Hugh Mas playing “Mandela: Bring Him paying a fortune. Back Home.” Pretty much all of the other copyright owners had donated their material. But Gallo and Universal and BMG have Have you had trouble accessing affordable archival between them asked for R 15 000 for a 7 second clip. As a result, material? I’ll probably remove the clip. 79% said yes; 21% said no. [25] Can be expensive, especially when rights are split between different companies. Rates vary hugely. Certain music is so [2] Once made a . . . not for profit film, and NPO organization. engrained in the public mind (e.g., rebel music like punk, soul, Asked for reduced rates [on material from BBC]. Absolutely reggae) that it should be far more accessible. Artists are often refused. better to deal with than the record companies. [3] A lot of historical archive is owned by foreign repositories and is hellishly expensive. Because of that, they have had to reduce USE OF ARCHIVES the amount of footage due to cost.

Which archives or repositories of footage and other [4] SABC archives are among the most difficult and frustrating to material have you used? work with. . . . Other libraries, which are better organized such as BBC, Reuters, are usually more expensive than SABC, although deals can be struck. 85% of respondents said that they used SABC. [8] African mirror archive: SAIS is charging R48,000 per minute. It One or more respondents said that they used the following was given by national archive to SABC to manage, and it was archives: given for free. They are now charging exorbitant rates. SABC BBC, Pretoria National Film Archives, National should have rate for SA programs. Archives have become big Archives, Private Archive from other filmmakers, business. Costs are ridiculous. Stuff that is publically disseminated, Mayibuye, ITN, Reuters, APTN, CBS, ANC, African filmmakers should be allowed to use free. Mirror, Photographers, Independent, BAHA, National Geographic, GCIS, Internet Repositories, [8] Music is easier to get round than archive. You cannot emulate ZBC, CNN, CBS, ANC, Robben Island, Museum archive. Power of archive repositories is a huge problem, because Africa, Johannesburg library, Galio, Sarel, Danny doccie budgets don’t sustain these. When the war is over: the Schechter’s, Vaties and Aquavision, International TRC hearing recordings were given to national archive and to Social Sources, News11, WKNET in US, Channel 13 SABC. TRC was taxpayer funded and very important for country: New York, Old Killarney Films Archive, Majors, South then archive was housed at repository where one has to pay to African Police Service, eMakhosini, Library in KSN, view, and then to use it in doccies, one has to pay full SABC rates. South African History Archives, Gay and Lesbian Completely morally bankrupt. [He] has stopped working with Archive in Joburg, BFI, Peter Davis, CBC, ABC, archive because of the corruptness of the system.

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[12] SABC - archive not managed properly – can’t find good stuff just sitting you had to pay a fee for just being there, you have to - have to suffer pains of gatekeeper. Not properly catalogued. pay a fee. Considering all the other expenses, traveling, the use Have to pay huge amount for research. . . . Wanted us to use the of the equipment and to view the material you pay a lot of money SABC commission budget to buy their own archive at huge rates. just to look [at] it. The only people who always come out of it are the big moneyed companies. [14] If one is forced to use SABC archival material specifically for an SABC project, the cost base for doing that is too high. Other Have you ever used a second-hand copy of footage problems arise if one has a project that requires the use of archival originally from an archive? material located in other countries. So the truth is that from any source the cost requirement for using or clearing archival material 75% said they had used second hand footage originally from can be too high. an archive. 52% said that they had used such material without [22] SABC rates for archive they sell compared to the budgets clearing rights with the archive. they give local people to make documentaries are completely . . [1] Legally, a lot of the very old material (prior to 1976) - apartheid . inexplicable. I don’t know how they expect us to pay in the space struggle material, which is mostly foreign - and they will use this of the budget they give in the first place. They I would say are the in their documentaries. Sometimes this has been cut into other worst for archive. They also have a terrible system, there is like one programs, and they will use this from the cut footage. The Mandela guy who runs the whole archive. If you can’t get him on the phone footage specifically is owned by overseas repositories. They will you just can’t get any archive. Other archives are good. use this in their doccies without necessarily getting clearance. [23] Archive costs can and should be paid for to reflect the work Often in their program Special Assignment, they will use images involved. Except for, e.g., at Smithsonian it is often free. *** Thank from books - have always considered this to be inconsequential. god that there are commercial archives who filmed our history If they film picture in a book, they also don’t clear copyright. If otherwise it wouldn’t [be available] If you look at logs from ITN and they film a picture in a newspaper, they will get clearance from BBC, they’ll give you the cameraman’s name. Or where they got the Newspaper. They will then credit the particular newspaper. hold of it, they’ve bought it. To the argument that we wouldn’t have [4] Not 100% sure. Have used footage from other people’s films and to pay overseas companies for our own history - WE SHOULD!! *** believe it was all their original footage - but cannot be certain. It’s well maintained & looked after. There are cases where people have signed over rights to me, where I have questioned them about [17] Like all over the world there’s a growing amount of open whether they really own it. [One filmmaker] has said, “Well I filmed it source mentality where you can go on the website, you listen to for that broadcaster.” If they sign it to me, I have to accept it. Where whatever music you like and you can take it, it’s free, and put in there was a pool arrangement in the 1980s where camera people music if you want, it’s all social. If that grows, I think it will take us divided up the work in the mornings, it was only pool for that day, to the next level – where you just drop stuff and people get credit e.g., you go to Thembisa, I’ll go to Katlehong, but after the news for it or you don’t have to pay and stuff like that. event, it then reverted to the company who shot it. [36] I was under the impression the rights were cleared through [33] In fact, that is the basic trouble of archive material in South the initial archive sale. I was not really worried. Africa. It is extremely inaccessible, both in terms of expense and the red tape. You have to undergo a lot of ordeal just to get the material that you require. It is very closely guarded by the archivists. ASSERTING YOUR OWN COPYRIGHT

[39] Archives have become the most expensive part of the Do you sometimes find yourself giving up copyright in production; even trying to get to see the archives has become the most expensive process. That is the main difficult[y] I have your own productions by virtue of the deals you have been encountering in trying to acquire archive. For example, to enter into with funders or broadcasters or other we were trying to get images of Black soldiers in World War II in organizations? North Africa. The way to get it was we had to travel all the way to London and sit at the military museum and British Archives. But 79% said yes; 21% said no.

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[9] SABC. And this makes me reluctant to work with SABC under [33] This happens quite often. It happens both in literature with present circumstances. SABC doesn’t deserve some of the publishers, with producers and also with broadcasters and in material I have produced because it denies us our IP. But we gave many instances if not all instances that I have made films I’ve had up the copyright with a bleeding heart, just to get the information to cede all the rights to the producer or broadcaster because out there. of the definition that they become owner by virtue of making it possible to happen. So even if you have copyrighted your [13] Yes, of course! You sell your whole bloody soul, and your material, it’s just a little symbol on a piece of paper, the moment leg and your kitchen sink and your toes and your footage and you sign for it to be done it is out of your hands. your creativity and your brain, all those, all those to the national broadcaster (SABC). . . . [39] It happens all the time with SABC when you sign SABC contracts, we do so much that we think its normality, that’s how [16] If you’ve got a sitcom on SABC1, they will want you to give business is done. But, it’s a matter of time before this injustice your copyright to them so that they can exploit it and really make imposed on us has to stop at some stage. I don’t think we can be that the kind of increase whatever they tried to create and they robbed forever. I think morally and ethically, there is no amount will make sure they beef up contracts that protect them and not of money that can buy an artist’s creation. Even though they the producer and when you ask them, “But why, can we change may give it to you and you own it, it’s still their creation and no it?”, and they say no it’s [in the copyright law], it happened a long amount of money can take that away from you. time ago, there is no way you can negotiate it, many have tried and many have failed forgetting that those laws were made by [34] My employment contract with Zim TV transferred all copyright human beings. to them in my work. As such, I had no rights in any of the slate of work I produced. [17] Broadcasters in SA basically don’t give copyrights because they say they pay for the product so your intellectual property Have people or institutions ever re-used parts of your doesn’t count and you don’t really have a choice because that’s work? Do you know of anyone misappropriating your the only deal you can get. work or using it without giving you proper payment or [18] SABC, whenever you do a commissioning from them, you recognition? have to cede all your rights. 55% said that their work had been re-used. 41% said their work [28] The problem with the SABC and its understanding of how one had been misappropriated or used without proper payment or deals with copyright, they don’t see it as a bundle of rights they recognition. want one monolithic right. They want the whole thing and then [they do] nothing with it. [For example, for one of the films] they [2] Oprah Winfrey. At the Kempton Park World Trade Centre, brought on an international sales agent. But we’ve gotten nothing when the Afrikaner Weerstandsbeweging (English: Afrikaner from that. For me, I’m not so worried about the money, but if it Resistance Movement, aka AWB) crashed through glass. [We] weren’t for the international external sales agent, it would have were there. We jointly owned footage with SABC. The material sat on the shelf. We’re not even paid for SABC’s rebroadcasts. was licensed in film about Mandela. Oprah did something on Mandela, used the footage [without licensing from the filmmaker [32] When I shoot on commission to SABC, and others, I generally who shot original footage]. keep my own copy of generic shots that could be re-used in another production. My justification is that the SABC’s approach [11] I have directed films for a producer, who then owned the rights, to IP is unfair and is being reviewed by the industry anyway, e.g., and I have subsequently seen the footage used in corporate in the first commissioned production I ever did, we hired a special videos and not been pleased with that. lens to do a shot of the moon. We spent extra money of our own to make this showpiece, and we continue to use the shot to this day. [15] I think the piece about the women who were in prison, but We have an electronic library system where we log everything so several other pieces the SABC has X number of repeats and I we can reuse it from our own library, and on occasions to sell it. know with the one about the women prisoners called Survival Strategy was definitely played more than six or seven times and I

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don’t think that’s in the contract but then again where do you go [9] Where it’s being fairly used in the interest of public information to and to whom do you complain? and education for the community - strictly for that purpose. We often give it away, when people approach us and ask us. I [26] One of the Why Democracy films on China was put on believe universities have a budget - so they should at least inform internet in China without permission - but I was happy because it us and ask if they need to pay. It would suffice for them to send us was the only way to reach the Chinese people. Other films were a letter explaining how they intend using the material. This would posted without permission and I got them taken down. I’ve had be a benefit for us - for our resumes. I get annoyed when I find out problems with bootleg DVDs too. second hand.

Are there circumstances where you are happy for [10] Depends on the project and the material. Happier for your work to be used without permission or without them to use factual rather than fictional, e.g., social issues. For example if someone took footage from . . . our film about AIDS payment? . . . to make [an] important [work] about AIDS. Key thing their purpose or motive - if it’s educational - socially useful. We have 69% said yes; 31% said no. given permission without asking for payment e.g., workshops for [1] Government often uses material for public screenings. mineworkers - ‘community outreach projects’. Recently [a filmmaker] spoke to a tic addict [crack addict] - who [12] Don’t mind giving bits and pieces to friends who are told [the filmmaker] that he saw [his] program on tic addiction as filmmakers, who don’t have money, and when I believe in their an awareness program in a different format. It was not for profit film. Global witness recently contacted me and I let them go but to raise awareness. They welcome this kind of usage. ahead. Also, if they are using a short clip (under 30 seconds) to [2] [F]or non-commercial enterprise then generally happy to be used construct an argument that is not stealing IP - because their film without payment, or for friend, or project that she believes in. If she makes a bigger arguments and the sum total creates new IP, of doesn’t trust the person, and the material is sensitive, she would insist on which my clip only forms a small part. seeing the material in the cut, usually to protect the person in it. [13] Yes, I would be happy for it to be used without permission or [3] I don’t mind doing this if the work is for the public interest payment as long as someone asked me, for example, where new and the NGO’s are distributing the film for free. When it’s in the work is created out of it. I just want to kind of know about it really, public interest and when it is for the common good. I would allow that’s all, so I can intervene if it is not being used appropriately. creative commons usage in order for material to be maximized. [14] Support would be the nature or the type of program where we But would have to have some form of protocol or formalities. want it as broadly distributed as possible and actively encourage [4] The point here is that it is actually part of the content of the film, a kind of viral distribution of the program like the child refugee not reused in a different way. Finally, on a case-by-case basis, it program we did, . . . , we wished it to be distributed and have could be discussed to allow no-cost use by a filmmaker who really promoted broad distribution of it across any platform so it gets out doesn’t have the money and is doing something I support. there because we think it’s important. So yes, we do support that type of usage for particular types of programs. [5] Yes without payment, but not without permission. [17] Well because I don’t own the work, it’s not my call. Yes, I like [6] Educational, for the broader good, for raising awareness. supporting people in a context where somebody is making a film and my stuff comes appropriate and they feel like it could help. [8] [N]ot such a big deal for people on the ground, NGO, I wouldn’t have a problem especially if it’s SA filmmakers, we all educational usage is okay. [Someone] used his first film . . . have the same struggles. as example on unethical filmmaking - was recorded off the television. Was not happy as she was saying bad things about the [19] Well if it’s for a good cause that I believe in, I wouldn’t have film. Probably [would] not [have] minded if she was saying good a problem, e.g., any documentary work that is transformational things. SABC sold [another film] illegally - sold it to SAA, which was and educational. A documentary that is not about profit making, not included in the contract. but about uplifting communities.

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[20] Without payment - a non-commercial production - especially [9] Copyright, creative rights. We always fight with SABC that a political project I wanted to support or a worthy project. Or a we are not service-providers. But we make the content happen struggling filmmaker…. For fair use of my material - it would depend through our creativity and we make the content happen. on the material. Worthy project by educational filmmakers would be OK. So fair use would have to concern itself with the rights and [11] The right to be recognized as the creator of that thing. dignity of the people in the footage. [12] Right to earn money from the film. In Angola, I have no [31] If it’s for a charitable cause. If it’s for a fellow documentary legal remedy. Moral rights don’t really matter - it may get me maker with a limited budget and I agree with the theme/concept recognition, but it doesn’t allow me to earn money. of documentary. [13] I have rights as a creator and if my work is to be used, I have [33] Unfortunately, you have to live with it if you want your work to a right to be consulted about that. I have a right to have an input be distributed or to be seen. You do that reluctantly with great even potentially into the new work. I suppose I would have to sue reservation. The excerptions depend on the cause for which the someone if they kind of transgressed (my rights), but I wouldn’t work is done. If it’s for developmental purposes I have no problem, know how to go about doing that, I wouldn’t know what my rights in the same way as I use other people’s material, for example in are and how far I could go, I wouldn’t know. And, I suppose I teaching film, but with acknowledgement that this is so-and-so’s need to go read the copyright act. work that’s being used. I think that’s like the minimal condition [14] The first and most important is to own or co-own IP embodied that one can put, that acknowledgement is very important. in a project and to have the right to optimize the use of that by [37] On a global level, it would contribute some works to a creative way of distribution of sales to as many outlets as possible. How commons, for use by anyone with specific guidelines. one protects that is through normal means of placing disclaimers on the material in the first place. But that’s really no means of Have you ever given permission for your work to be protection, but if it’s certainly through some means of license or used and then been dissatisfied with the result? sale agreements is to specify the nature of usage and the duration of usage and the various platforms of usage, which increasingly has become quite important as traditional broadcast or theatrical 10% said yes; 90% said no, or had no response. are no longer the primary mean to material being distributed.

Have you ever considered taking (or have you taken) [17] I don’t take any steps because it’s like you don’t have a any action against anyone who used your work choice and the only deals you can get in SA are the ones that without the necessary approval? take away your intellectual property. [21] With SABC, I have none. In general, I have none. It’s a disaster. 25% said yes; 75% said no. I could be really wealthy by now with everything I’ve produced. [14] In the local context, we actively sought support from Surfact, When SABC rebroadcasts dramas, actors have ‘residuals’, which is the agency tasked with routing out piracy and that kind production staff receives no royalties. My key concern in terms of of enforcement practice. We actually contacted them, we had my rights over doccies, would be an ability to maintain sensitivity many discussions and forwarded documentation to them to try to subjects, the people in the doccie. and do something about it. Unfortunately, Surfact didn’t feel that [28] The right to sell it, and resell it to different people, the right to it was a useful exercise. write a book based on it, sequel, all are economic opportunities, that’s what copyright is about. In a less capitalistic society, one What are your most important rights as a creator? would say copyright is about the right to make sure your work is used fairly and appropriately. [8] Copyright and equity. Put copyright notices on the films and on all documentation related to the films. Don’t give masters to [34] Moral rights are more important to me. Meaning you cannot people. Lower quality copies when handing these out, with time re-interpret its context or meaning without my permission. code. Equity: make sure you do good contracts.

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COPYRIGHT KNOWLEDGE What is the impact of current copyright law on filmmaking in South Africa? When you have a question or concern about a copyright issue, where have you gone to seek [1] I have come across work from new producers, with footage included that is in flagrant disregard for copyright law and thus guidance? Do you have trouble finding competent cannot be used. Scans of works from libraries that cannot be used. legal advice? [2] Law is against the creators. Archaic. SABC operates like this: 41% stated they have difficulty finding legal advice. he who pays the piper owns the tune. Desperately needs to be overhauled. Enormously prejudicial. [8] In Africa, that’s a huge problem. Getting a bit better. Lawyer friends, to see what they say. Fair usage guidelines from the Net. [3] Broadcasters are the main source of funding, and thus they take [Another filmmaker] is getting advice from legal experts in the states. over ownership of copyright because of commissioning. Disinclines us to become creative partners with the broadcaster. Long term [11] Often you just ask someone else in the industry. I think there is effect is to diminish viability of documentaries as a sector of the a common law on the ground that everyone thinks is the law, and film industry. One of the most damaging legislation that exists and it probably is not necessarily so. reluctance of the broadcasters to address these issues.

[12] AU PIJIP document on Fair Use. Lawyers are generally too [4] Existing copyright laws in South Africa are arcane and are not expensive. [One SA attorney] didn’t give us a clear argument. up to speed with international developments such as those being (The top guys on copyright in SA are Spoor & Fisher) promoted by Creative Commons. Financial input is regarded as far too important in the copyright attached to a work, and the [23] If someone was going to assert fair use in a big way in their rights of creators inherently are not considered at all. Additionally, films, I wouldn’t take it on [as a researcher]. If they want to use fair use is impacted because once copyright is owned it is far too fair usage, they need to have that cleared up before they come absolute and not related to public interest or needs. to me. And I don’t know how they’d do that. So I wouldn’t take the job on. I have good relationships with the main archives. [8] Discourages certain kinds of storytelling, and decreases And they give me good deals for my clients. I’m not going to production value. jeopardize that. [9] Black filmmakers are so desperate that they don’t care about [13] Copyright lawyer. If I was really concerned about copyright I copyright - they just want to tell their stories - often because they would probably hunt out a copyright lawyer, but generally it’s the just want to earn. . . . word of mouth. [9] Depends on situation - under compensates original creators [17] Never because there is no point of consulting. but overcompensates some institutions that monopolize all copyright *** like where SABC owns copyright in your films for [20] Lawyer - Mark Rosen. He’s OK, but he’s generalist. Isn’t many years. enough work here for people to really specialize in copyright. I think copyright law is hugely misunderstood by many of us. Clear [9] Indigenous IP doesn’t give enough control. that the law is open to a lot of interpretation. Often not a clear- cut answer. Often makes people err on the side of caution. So we [10] Don’t know what law says . . . different point of view on are looking for short concise answers - in fact, the answer may be different projects. Fictional project originated from nothing where more complex but we just back away. . . . Got David Dyson in at someone created something from scratch . . . . I value more about that time – couldn’t give us 100% assurance. Copyright overlaps their copyright. Documentary makers are using real underlying with so many other rights. There is a notion that it is much easier events, while the way they present them may be original, the to use images of poor people because you will never be sued. underlying footage of events often I feel should be more widely Much harder to use images of wealthy people. Generally True. available. With wildlife & natural history, people have gone Interesting thing - attitude that people have to the poor. through such hardship and have material that is so rare, costly,

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and involved so much endurance (e.g., snow leopard) I feel that’s [2] If people were able to own and sell their own work, industry might another category. But with current events, it’s a different matter. be more sustainable. If public broadcasters were forced to act like broadcasters and encourage creativity instead of discourage, then [12] I believe in copyright 100%. But there should be different tiers. we wouldn’t have to pay them large amounts of money for stuff Local filmmakers should access local archive more cheaply than in the public interest. Broadcaster should be repository of public international ones. interest. The SABC is a privileged system because they have three channels, on some level they act as broadcaster when they protect [14] [T]he key issue around copyright is really about the rights of their rights, but they act like commercial broadcaster holding onto those who created IP in the first place and how to add and optimize copyright and not reselling content. those rights for the creator and this is where the issue comes in, I mean SA actually has good copyright laws or compatible with [3] Main way: interpretation of the act - different interpretation. the way the law is structured anywhere in the world. Addressing creative rights to their own IP, and the right to benefit from their own IP (like IT, software patents invested in creators). [18] Discouragement – you do a lot of work for the broadcaster, Industry needs to get . . . together and work as cohesive body the copyright is vested in them so you get discouraged to put - across all the different bodies that make up TV industry. extra amount of work in it because you are not going to get any Cohesive, coherent task team that speaks with one voice to the benefits of it after. So therefore, the work becomes mediocre. broadcasters and ICASA. [20] It makes certain kinds of films impossible for us to make, [4] Look at models in other countries where copyright of creators is even though we are in a crucial period of our history, where we implicitly respected, and fair use is in place. Compare to Creative would be examining our past. We don’t own our own history. You Commons to find ways that the national legislation could allow couldn’t make a film on the Soweto Uprising in SA unless you had for more flexible copyright laws. big international money. Isn’t that a tragedy? [5] A clear distinction between ownership of copyright versus [27] Making a documentary film is more difficult than it should who’s paying for the cost of creating something: i.e., SABC abuses be with regard to copyright issues. Broadcasters demand 100% copyright because they do not recognize that copyright vests copyright of films and then don’t distribute them internationally with the creator. They should be empowering the creators, and for broadcast or non-broadcast such as educational usage. If they should hold on to copyright. they allowed filmmakers to retain distribution rights and rights to their source footage, filmmakers could exploit this opportunity [6] Things that are in the public domain like the news and current and be more financially empowered. affairs programs, and that are sociological in nature should be allowed to be used without permission or payment. . . . In [35] The laws in South Africa are fairly good, but the implementation, a way, if you can see that it was generally incidental, it should monitoring, and policing of these laws are non-existing. be allowed. If the program is quantifiably educational in nature, [39] A lot of the laws are not meant to empower ordinary folks like one should be allowed to use music or footage to enhance the us. They have exploited people in so far as they have for years production. Moby has free tracks online for anything that is and years raped us and our people. proven educational. [7] Consult with all stakeholders to revise the copyright law, taking Outline any ways you think South Africa’s copyright input from our organizations such as DFA, for a new law to be passed. laws might be improved to encourage the production Also some kind of controlling body that one can appeal to in the of documentary films. event of problems with copyright or excessive fees being charged - some kind of ombudsman on copyright, with ‘teeth.’ Portal [on [1] Certain material should be allowed in order to encourage which] people can easily [access] info on archives . . . - where one new filmmakers. Copyright restricts them. The amount of money can find good lawyers, where the archive is kept; best practice required is excessive. These fees should be restricted, as a lot of from other countries. One Stop Shop. Should be sponsored by the films cannot be made because the producers cannot afford it. Department of Communication, as this is their job. There should be a cap on the fees.

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[8] Careful assessment: differentiation between footage. Stock [18] I think an international survey needs to be done to see footage can be sold, but news and historical events should be best practices in different countries. In special relationships in more easily accessible and handled differently. SABC should not developing countries such as ours, [and see] what they’re doing be allowed to charge R48,000 for footage – taxpayers’ money and make an informed decision based on that. paid for it to be created. [19] People should not own documentaries, they should have a [9] An ideal situation with [some] clips is to acknowledge the right to use for a period of time and that property should go back filmmakers. The material is public Information and educational. to an archival institution when it can be used and treated in an And we don’t have the budgets to clear stuff from around the world. organized manner so that you know what is happening to it.

[10] Material entering public domain after specified period. [20] I think that our current copyright law which is apartheid law is unconstitutional. And it is being challenged as we speak. [11] Archive material should pass into the public domain much Hopefully, with that will come new laws to help us all. We once sooner, almost like drugs, the developer gets a window to exploit did a study for TPA. Unconstitutional because it denies ownership. their R & D and then it gets thrown open to everyone. Problem is that the definition of ownership is too narrow. If you recorded stuff in 1976 - the only person with rights is the person [12] Very clear rules and guidelines around fair use. Find a way to who paid for the tape. In the same way the SABC gets to own all force our national broadcaster to give filmmakers access. the content it broadcasts. So the problem is with the definition of [13] I think people need to learn what the (copyrights) laws are. ownership - and who the ownership goes to. I mean if I knew what the laws were then I could know if should [21] Would like to use material without permission if knew it was be angry about them or not. But I have got a clue what the stuff ok. Copyrighted material often out of our budget range. Also too is out there. So I need to be educated, you know, like what are much material in SA is owned by SABC... difficult to access, both my rights? Where are, you know, what I think should be my rights, physically, and then copyright control. where are those being undermined? [23] Our copyright laws should be following international law. I [14] With regard to France where the rights of the creator is in the always ask license lawyers to put festivals in for free. Would be law so that the creator will have some share and benefit. nice if there was some sort of universal law. Would like it to follow [15] I think the world is exploding right in front of us in terms of new US law, where if something is shot with government/state money it media, in terms of images, in terms of value, in terms of relevance, is free usage. Perhaps that should apply to the SABC. One could in terms of how it’s been used. There is a whole new world being do a discount at SABC because it’s only part state. opened up and I think for those of us who generate information, [28] It’s not the law that needs to be improved, there needs to be stories, the whole in terms of improvements it’s at our finger tips a better understanding that copyright is a bundle of rights that and everything can change but we do need to equip ourselves can be separated and negotiated individually. with digital rights, with understanding all secondary rights and how to make it work on our favor. [34] I know the US is promoting “Fair Use” principles, and I think that may be a good idea for South Africa also. Encourage the [15] If there were laws that did have exceptions to allow us to set up of a public access archive vault of treasured heritage or make more films, better films and films that could travel a lot more. historical material. I know there are a couple of sites where they allow you to use the material as long as you acknowledge the source, because the [39] My justification was based on the principle that the story main thing is what’s the point of having all this information if it needed to be told, and I could not afford the money that people never comes to light, as creators and as people who are putting were asking for. I’m still waiting for the legal problems that will it together, if we have more access we would see different kinds follow me. But, I think whatever legal problems are coming, I of stories out there. am expecting and I am anticipating them. In fact, I want them to happen so that this subject can now be discussed in public, [17] An open source of information where creators are properly in court, so that we can debate about these images. So, I am credited.

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waiting, I wonder who is going to have the guts to sue me for that. Do you have an understanding of the concept of the But, I use the material. I have never sued anybody for using my “public domain” and its application to your work? material, and I’m sure there have been so many people that are using material, and I’ve actually given material away. 78% said they had at least some understanding; 22% said they Give details of any copyright laws in other countries had little or no understanding. that you believe are more conducive to the work of Do you have knowledge of the exception for documentary filmmakers than South Africa’s laws. quotations under the Copyright Act?

[2] France - enforces copyright returns to artist after certain 22% said they had at least some understanding; 78% said they period. Britain - copyright act overhauled: broadcaster does not had little or no understanding. own copyright even if full commission.

[3] UK [is] doing reversals now, due to heavy losses. [It is] u-turning on gains being made by producers. Claiming back much of the rights. The USA where there have been major gains in the area of copyright - producers are benefiting.

[7] In the USA and England and probably Europe, growing trend towards Fair Use and people pushing boundaries and actually fighting for it. Here we are not at that stage yet. Growing awareness around issues of IP, and the more awareness, the more people with fight for it.

[8] The fair usage principle in the US is a good thing. Blanket license agreement that the BBC has should be used in South Africa.

[11] Brazil has a whole creative commons thing.

Do you know of the fair dealing provision in South African law?

17% said they had at least some understanding; 83% said they had little or no understanding.

Do you understand the concept of “insubstantial copying” under the copyright law?

7% said they had at least some understanding; 93% said they had little or no understanding.

Are you aware of the “incidental use” provisions in the Copyright Act?

61% said they had at least some understanding; 39% said they had little or no understanding.

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